What Happens When They Are No Longer a Loved One?

​Unfortunately, rifts sometimes arise between family members that are much more serious than just temporary squabbles. The result may be estrangement, defined by Dictionary.com as “the state of being alienated or separated in feeling or affection; a state of hostility or unfriendliness” or “the state of being separated or removed.”  Estrangement does not mean that the relationship has come to an end legally, however

• A spouse may move out of the home and have limited or no contact with the children.
• A child who has been abused may live with a relative and avoid contact with his or her parent.
• A parent may choose not to associate with a child who has committed crimes or abused the parent’s trust.

These unfortunate situations occur more often than we would like.
​You may be surprised to learn that limited contact, or even the absence of any contact, will not have a major impact on the legal right of an estranged spouse or child to inherit from their family member, especially if there is no estate plan expressing an intention to disinherit them.

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​Estranged Spouse - Intestate succession statutes

​If the deceased spouse did not have an estate plan in place, the surviving spouse is legally entitled to inherit from the deceased spouse as set forth in the relevant intestate succession law even if the spouses are estranged—and in many places, even if they are legally separated.

Intestate succession laws provide a default estate plan representing the government’s view of the fairest distribution of a deceased person’s money and property.
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Typically, if the estranged couple did not have any children or living parents, the surviving spouse will likely inherit the entire estate of the deceased spouse—even if they despised each other and had not seen each other for many years.
If there are children, the surviving spouse and children may each receive a portion of the estate as set forth in the intestate succession statute.

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​Estranged Spouse - Pretermitted spouse statutes

These statutes are designed to protect a spouse, who may be unintentionally omitted from the deceased spouse’s estate plan.  For example, if the will created prior to the marriage was never amended to provide for the spouse.
 
These laws typically provide that the “omitted spouse” will inherit the amount he or she would have received under the intestacy statute (as if the spouse had died without a will)  - unless the will expresses an intention to disinherit the surviving spouse.
 
So, in some cases, even if the estranged spouse finds that the deceased spouse's will does not provide for the estranged spouse, the estranged spouse may still have a legal right to inherit if the will doesn't clearly state that the deceased spouse wanted to disinherit the estranged spouse.

​Estranged Spouse - Elective share statutes.

Even if the deceased spouse created a will that expresses an intention to disinherit the surviving spouse, the applicable elective share statute protects the surviving spouse from being disinherited.  
 
These statutes permit the surviving spouse to “elect” to inherit the statutory amount, which is typically a percentage ranging from thirty to fifty percent of the deceased spouse’s estate.  The surviving spouse may make this election regardless whether the deceased spouse intends to disinherit the surviving spouse. 

Electing against the Probate Estate or Augmented Estate

​The actual size of the elective share will depend on whether the elective share is applicable to the probate estate or the entire estate known as an “augmented estate.”  For example, in the District of Columbia, the surviving spouse may make an election only against that property passing through the probate process.  In such cases the elective share would not apply to the assets in a trust passing outside probate or any accounts that pay on death to a beneficiary. 

In Virginia and Maryland, the elective share can be made against the augmented estate.  This would include all the assets in the deceased spouse estate including those assets in a revocable trust or assets that pay on death.  

Estranged Child – Intestacy and the “Omitted” Child

As with an estranged spouse, if no estate plan is in place, a child will be able to inherit from his or her parent under intestacy law, even if the child had no contact with the parent for many years.

The estranged child may also inherit under some circumstances if their deceased parent created a will that does not provide for the child.  Some laws provide that if a child is unintentionally omitted from a will—for example, if the child was born after the will was created and the will was not updated to include the child—the child should inherit the amount that the child would have received under the intestacy statute (what the child would inherit had the parent died without a will).

​While the doctrines are similar between spouses and children, the law more readily permits a child to be disinherited.  Simply unlike spouses, children do not have an elective share right (i.e., they have no right to any part of the estate if the child was disinherited).   

Ways to Address Estrangement in Your Estate Plan

If you do not want an estranged family member to inherit from you, you should create an estate plan that includes a will expressly stating that intention or a trust that does not include the estranged spouse or child as a beneficiary.

Unless there is marital agreement such as prenup or separation agreement, a spouse is always entitled to inherit the amount allowed under the elective share statute regardless of the terms of the deceased spouse’s will.

To avoid expensive litigation with the estranged spouse, your will could provide for an inheritance to your estranged spouse in the amount that a surviving spouse would be entitled to receive as his or her elective share or the “statutory minimum.”  You should also make sure that any taxes which have to be paid by the beneficiary or estate are equitably portioned to make sure that estranged spouse pays his or her proportionate share of the taxes. 

In DC, where the surviving spouse’s elective share is limited to the probate estate, you can decrease the size of the probate estate by creating and funding revocable trusts and naming beneficiaries to receive your retirement accounts (these accounts cannot be transferred to the trust while you are alive).

Other strategies, such as lifetime gifts (and prenuptial or other marital agreements) may also be used to limit (or waive) the spouse’s right to inherit an elective share.

​If you want to disinherit a child, you should clearly state your intention in your will.  To avoid a will contest by your disappointed child, you could also consider including a small inheritance for your estranged child along with no-contest provisions in your will.  A no-contest clause provides that your child will lose even the small inheritance if the child contests the will.

Take Steps to Memorialize the State of the Relationship

​For estranged spouses, doing what is required to legally end the relationship is another way to avoid unintended results when one of the spouses dies.
 
After divorce, typically a former spouse is not entitled to inherit any amount from the deceased former spouse unless the divorce decree provides otherwise.  (This general rule makes even including a divorced spouse difficult to include in your estate plan if you have an amicable separation and he or she remains part of your life.)

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We Can Help

​One of the important goals of estate planning is to create legal certainty.  If you want to prevent an estranged family member from inheriting from you, your estate plan needs to expressly state that intention. We can help you think through how to best accomplish your estate planning goals while also minimizing any further strife in your family. Give us a call today to set up an appointment.