REASONS TO BE GRATEFUL YOU’RE NOT LIVING IN SPAIN (OR LOUISIANA)

In all of the Spanish regions where inheritance is covered by the Spanish Civil Code, children are legally entitled to two-thirds of the deceased parents’ assets.  However, on October 3, 2015, a new law came into effect in Spain’s Basque Country region which allowed parents to disinherit their children without providing a specific reason.  The new law contains an exception for an only child with no children.  Such a child would be legally entitled to a third of all assets and should the parents wish to disinherit him or her, they would be obligated to justify their decision.

In all other parts of Spain, if parents want to disinherit their offspring, there needs to be a convincing argument to justify the decision. For example, the parent must allege certain situations, including, but not limited to children who have denied maintenance to the parent who is currently performing the disinheritance; children who have seriously mistreated or slandered the parent; a child who has been convicted at trial for attempting to act against the life of the testator; or, when the child has forced the parent or ancestor to make or amend the Will through threats, fraud or violence.

While in the United States you can’t disinherit your spouse unless your spouse agrees to be disinherited in a prenuptial or postnuptial agreement (except in Georgia, where your spouse is entitled to one year of support), you can disinherit your children in all but one state – Louisiana – and only under limited circumstances.

Disinheritance should never be done without careful and thoughtful consideration.  Some parents may consider disinheritance of a child who has a drug or alcohol problem.  However, the use of a revocable living trust with creative incentive provisions can be a much more effective way to address these concerns.  In other instances, parents may consider disinheritance of a child with a disability receiving public benefits for their care and maintenance for fear the inheritance will result in the termination of benefits.  However, once again careful estate planning through the use of a “Special Needs Trust” can provide financial assistance to a disabled child without jeopardizing public benefits.  Disinheritance may also occur when one child is, and is always likely in the future to be, unable to maintain a certain standard of living while another child is financially successful.  Under such circumstances, disinheritance may be appropriate but because of the substantial emotional distress and hard feeling that may result, the careful crafted language should be included which explains the reasons for the distribution scheme.

Finally, there may be certain situations where a surviving parent desires to disinherit children who have been estranged over a long period of time.  However, absent a Will or Trust which specifically expresses these desires, the property would pass by the laws of succession in Nevada to the surviving children in equal shares.  Accordingly, it is always important to consult with an estate attorney to ensure your estate planning goals are being achieved.

If you have questions about disinheritance or a Revocable Living Trust, please do not hesitate to contact our office at 702-798-4955.

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