How To Account for Estranged Children in Your Estate Plan

If you have an estranged child and do not want South Carolina's default inheritance rules to decide what happens after your death, your estate plan must say so. Perhaps you want that child to receive nothing or receive a smaller inheritance, or maybe you may want to provide for grandchildren without leaving assets to their parents. We will discuss such cases below.

In addition to a review of your will, you need to analyze old beneficiary designations, powers of attorney, and more for references to your estranged child.

Bespoke Estate Law is an established estate planning law firm in Myrtle Beach, and we serve clients up and down the Grand Strand and all surrounding areas. We do not ask you to justify an estrangement or provide more family history than you are comfortable sharing. We may need to know certain facts when they affect the legal strategy or the possibility of a future dispute, but otherwise, our concern is straightforward: what can we do for you in terms of your estate plan?

To schedule a consultation, establish a trust, write a will, or anything else, get in touch.

Estrangement Does Not Automatically Remove a Child From Your Estate

“Closeness” has no bearing on South Carolina's intestacy laws. If you die without an effective will disposing of your estate, state law will determine who inherits. Under S.C. Code § 62-2-102, a surviving spouse generally receives the entire intestate estate when there are no surviving descendants. If descendants survive, the spouse receives one-half. The remaining share passes to the decedent's descendants, according to S.C. Code § 62-2-103.

An adult child is not removed because the two of you have not spoken for years. The legal system looks at the family tree, and you need an estate plan that supplies different instructions, if that is what you want.

What Do You Want Your Estranged Child to Receive or Not Receive?

If your estranged child is an adult, South Carolina law generally allows you to decide whether that child receives an inheritance from your estate. You may choose to leave nothing at all, leave a smaller share than your other children receive, or even provide a limited inheritance through a trust if you still want to offer some financial support with protections in place.

Speak with your attorney about very carefully reflecting your wishes in your estate plan. An estranged child does not automatically lose inheritance rights simply because the relationship has ended.

Minor or dependent children are a separate matter because South Carolina law gives them certain statutory protections in some circumstances. (For example, S.C. Code § 62-2-401 provides exempt-property rights to minor or dependent children when there is no surviving spouse.) If the child you are planning around is still a minor or financially dependent, your attorney will need to account for those rules.

For most parents dealing with an estranged adult child, though, you may choose if you want that person to receive anything at all, and with what strings attached.

Making Intentional Omissions

Make your intentions perfectly clear in your estate plan. S.C. Code § 62-2-601 states that the testator's expressed intention controls the legal effect of the will, subject to applicable law.

There is also a special rule for children who were never mentioned in a will because they were born or adopted after the will was signed. In some situations, South Carolina law may still give that child an inheritance, unless the will shows that the omission was intentional. A child in this situation is known as a "pretermitted child." S.C. Code § 62-2-302 addresses children born or adopted after execution of the will, along with certain children omitted because the parent mistakenly believed they had died.

This does not mean that every adult child left out of a will can later claim an inheritance, but the larger point remains: if you are making a deliberate decision to exclude a child, your estate plan should say so.

Note that in most cases, there is little reason to record years of family conflict, or outline the manner of your estrangement, in a document that may later become part of a probate proceeding. Your attorney needn’t turn the will into a final letter to the child.

Decide What Should Happen With Your Grandchildren

Suppose you do not want your son to inherit, but you still want his children to receive the share that otherwise would have gone to him. That can be accounted for. You might instead want the entire branch of the family excluded, and that would call for different language.

South Carolina's anti-lapse law is another reason to make your wishes clear. Under S.C. Code § 62-2-603, descendants of certain deceased beneficiaries may take that beneficiary's place unless the will demonstrates a contrary intent.

The anti-lapse rule does not automatically give grandchildren the inheritance of a living parent you intentionally excluded, but your attorney should know whether your decision concerns one person or that person's descendants as well.

A trust can also be useful when you want to benefit grandchildren independently. Assets could be held for their education, support, or later distribution without first passing through their estranged parent.

Are Beneficiaries Named Outside Your Will?

Bank accounts may carry payable-on-death instructions, life insurance policies and retirement accounts commonly have beneficiary designations of their own, and certain jointly owned property can pass to a surviving owner without reference to the will.

South Carolina specifically recognizes account transfers that occur according to the terms of the account rather than through the estate. S.C. Code § 62-6-204 provides that qualifying transfers under the multiple-party account provisions take effect because of the account terms and are generally not part of estate administration.

An estranged child who remains listed as the beneficiary of an old account could therefore present a very different problem from an estranged child who appears only in an outdated will.

All things considered, review your beneficiary designations and ownership arrangements at the same time you review your estate plan.

Remove Old Financial Authority

Determine whether the estranged child still has authority to act for you during your lifetime. This comes up frequently with durable powers of attorney. This can happen if you named a child as your agent many years ago, before your relationship with that child changed.

Under S.C. Code § 62-8-110(f), executing a new power of attorney does not revoke a prior power unless the later document says that the earlier document, or all earlier powers of attorney, are revoked! That is a good reason to identify exactly which documents are currently in effect.

South Carolina also permits a person to nominate a guardian or conservator through a power of attorney. Under S.C. Code § 62-8-108, the court generally follows the person's most recent nomination unless there is good cause or a disqualification. So, while you review old financial authority, look at those nominations as well.

Update Your Health Care Documents

South Carolina has a statutory order of priority for situations in which a patient cannot consent to health care. Under the Adult Health Care Consent Act, S.C. Code § 44-66-30, an adult child ranks after a guardian, an authorized attorney-in-fact, and a qualifying spouse, but ahead of parents and siblings. If the patient has several adult children, a majority of those reasonably available for consultation may act.

Review your health care power of attorney and other advance planning documents to make certain the people named today are still the people you want making decisions later. If an estranged child should have no role in those decisions, leaving the issue to South Carolina's statutory hierarchy is probably not the result you want.

Your Estranged Child May Still Receive Notice During Probate

One point that can surprise people is that leaving a child out of your will does not always keep that child out of the probate process altogether.

South Carolina probate law requires notice to certain family members and heirs, even when they are not receiving property under the will. S.C. Code § 62-3-306 addresses notice in informal probate proceedings, and S.C. Code § 62-3-403 applies in formal proceedings.

So your personal representative may still have to send notice to an estranged child after your death. That can feel counterintuitive if your estate plan very clearly leaves that person nothing, but the notice requirement serves a different purpose from the inheritance itself.

The practical takeaway is simply to know this going in. You can make a clear decision about who will and will not inherit from you, while still recognizing that South Carolina probate procedure may require some contact with the child after your death.

Consider Whether a Future Will Contest Is a Real Concern

A person who challenges a will does need a recognized legal basis for doing so. Under S.C. Code § 62-3-407, a contestant bears the burden of establishing grounds such as undue influence, fraud, duress, mistake, revocation, or lack of testamentary intent or capacity.

Certain circumstances may expose one estate to a contest more than others. A substantial change to a longstanding estate plan late in life, concerns about capacity, or heavy involvement by another beneficiary may affect how your attorney approaches the drafting and execution process.

A self-proved will can also help. South Carolina recognizes self-proved wills under S.C. Code § 62-2-503, and the Probate Code gives self-proved wills evidentiary advantages if and when proper execution is later challenged.

You do not need to plan as if litigation is inevitable, but if a real contest risk exists, speak with your attorney about it.

Will a No-Contest Clause Prevent a Challenge?

Don’t mistake a no-contest clause for a guaranteed way to prevent litigation. South Carolina law specifically limits how these clauses can be enforced. Under S.C. Code § 62-3-905, a provision that penalizes someone for contesting a will cannot be enforced if that person had probable cause to bring the challenge.

In other words, a no-contest clause may discourage a weak or purely spiteful challenge, but it does not shut the door when there is a legitimate legal basis for the dispute.

Talk With a South Carolina Estate Planning Attorney About Your Wishes

At Bespoke Estate Law, we will ask about family circumstances when they affect the documents we prepare, the choices available to you, or a genuine risk of future litigation. Otherwise, our job is to understand the legal result you want and build your estate plan around it.

If your current will, trust, beneficiary designations, or powers of attorney no longer reflect your wishes, contact us. We help clients in Myrtle Beach and throughout coastal South Carolina review existing estate plans and make strategic changes.