Can A Child be Disinherited

Sep 2, 2016

In a letter to Ann Landers a writer from Manasota, Florida wrote to deliver a message to children and grandchildren: “YOUR INHERITANCE IS NOT AUTOMATIC. IT’S A GIFT.” When it comes to estate planning, many people feel this way, and they have their reasons. But can you truly disinherit a child in Michigan? Surprisingly, the answer is “No.”

Under Michigan law there exist certain allowances that family members of a decedent are entitled to, regardless of what the decedent’s will says. One of these is the “exempt property allowance.” MCL 700.2404. This statute provides that the decedent’s surviving spouse, or, if there is no surviving spouse, the decedent’s children are entitled to (in 2016) $15,000.00 worth of personal property. If there is not personal property worth $15,000.00, the allowance can take other assets of the estate, such as money. The statute makes clear that this allowance is in addition to whatever the decedent’s will may state regarding gifts to children.

Additionally, this allowance does not need to be elected by the recipient. They are entitled to the allowance and the personal representative has an obligation to pay it.

In 2015, the Michigan Court of Appeals affirmed a Probate Court’s decision that a testator may not exclude a child from the “exempt property allowance” by inserting a disinheriting provision in his or her will.

In the wake of that case, two House Bills have been introduced that would prohibit a child from taking their “exempt property allowance” if they are disinherited in a will. In the meantime, estate planning techniques such as a trust (statutory allowances generally apply only to an estate, not a trust) or transfer on death designations can help to avoid this problem.