By Quentin Fottrell, MarketWatch
I very much enjoy your column, and you are much kinder than I am. It may be my age, but my parents weren’t expected to pay for college when I came of age. I am, yes, a baby boomer. From reading your column it seems like lots of people of varying ages seem to believe that they have rights to an inheritance, often by virtue of being a DNA relative and, sometimes, by virtue of a marriage.
I disagree with this assumption. Please educate me. Are my somewhat scornful reactions a reflection of my own age or ignorance? Or can I or anyone else write a will leaving their estate to whomever they like — say a charity, or the kid next door, or their nurse — instead of their kids and spouse? What is the law and etiquette regarding wills and inheritance?
Dear Disgruntled Boomer,
You can disinherit your children, if you wish. The reason doesn’t matter. But you must be clear as crystal in your will. In the U.S., it’s not enough to merely not mention your children in your will. A child who is estranged from the family or merely left out of the will could successfully argue in court that he/she was simply forgotten and deserves an equal slice of the pie to his/her siblings.
If your children expect an inheritance, I suggest having this conversation beforehand to avoid any nasty surprises. Leaving your family something of value, even something of sentimental value, rather than slipping these surly bonds on a resentment and a sucker punch, would be nice. It’s not advisable to leave your child with a question mark or a weird passive-aggressive gift.
To answer your question: Yes, I agree with you and, no, I don’t believe you are disgruntled. A child’s inheritance is only an inheritance when it’s an inheritance! That is, your money belongs to you, and not to your children, unless you (a) die without a will and the state law distributes your estate among your spouse and children or (b) you leave a will specifically disinheriting your children.
It’s more difficult to disinherit your spouse, however. Laws on spousal inheritance vary from state to state. In New York state, for instance, your spouse is entitled to an “elective share” that is greater than or equal to $50,000 or one-third of your estates, according to Adam Demetria from The Demetria Law Firm in Garden City, N.Y . “It isn’t easy to disinherit your spouse,” he says.
This elective share includes “the value of the probate estate and certain non-probate assets such as payable-on-death and transfer-on-death accounts, joint accounts, the net cash surrender value of life insurance, property held in a revocable living trust, and annuities and other types of retirement accounts, reduced by the deceased spouse’s debts,” Demetria says.
The time limit on such claims by a surviving spouse ranges from a few months to a few years. “In New York, the right of election must be asserted by the surviving spouse within six months from the date a will is probated or, if there is no will, when an administrator is appointed,” he adds. “In addition, the right of election cannot be asserted more than two years after the date of death.”
Trust your gut. Do what feels right. Be kind; of course, that’s subjective. That could mean leaving your estate to a worthwhile animal charity or, in fact, anyone you choose.
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Hello there, MarketWatchers. Check out the Moneyist private Facebook group, where we look for answers to life’s thorniest money issues. Readers write in to me with all sorts of dilemmas: inheritance, wills, divorce, tipping, gifting. I often talk to lawyers, accountants, financial advisers and other experts, in addition to offering my own thoughts. I receive more letters than I could ever answer, so I’ll be bringing all of that guidance — including some you might not see in these columns — to this group. Post your questions, tell me what you want to know more about, or weigh in on the latest Moneyist columns.