Yes, a Child Can Be Left Out of a Will

Bruce Wiliams
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Posted: May 19, 2009 12:01 AM

DEAR BRUCE: My stepfather recently passed away. He left a trust (not a will) for my two sisters. My one sister wants to include me in and give me a third share. The other sister has sent me part of the money and refuses to give me more. Can a stepchild be cut out of an equal share of the estate? -- H.S., via e-mail

DEAR H.S.: The law doesn't place any obligation for a decedent to leave money to anyone other than a spouse. Any child, adopted or natural, can be left out of a will, trust or other documents. This is a choice of the decedent for whatever reasons. The sisters, once again, have no obligation to share. I don't see where you have any legal rights to any of this money unless you can demonstrate that undo pressure was placed on the decedent shortly before his demise or loss of faculty, which you have not implied. It's unlikely that this is the case.

DEAR BRUCE: My dad recently passed away. His home is paid off and was left to my brother and me. I would like to buy out his share. I have not owned a home for 30 years. Am I a first-time homebuyer even though I would inherit the half share? -- D.N., via e-mail

DEAR D.N.: You mentioned that you haven't owned a home for 30 years. The magic number is three years. You also said that your home is "being left," not "was" left. In other word, the home is still in the estate's name. You might wish to consult with an accountant, but I believe what you should be doing is buying the share, not from your brother (because then you would be owning half of the home) but from the estate with an agreement that your brother would get the entire proceeds. In no way could you be jeopardizing your first-homebuyer's status and the tax considerations that accrue from that.

DEAR BRUCE: My husband was killed this summer in a boating accident. His mother gave me a $400 policy to help with the funeral costs. A funeral today costs around $12,000. Afterward, she asked me for a death certificate, and I inquired as to why, and she said she had another policy that was a few thousand dollars. He was the middle child and was never treated the same as the other two. I understand that she paid for the policy when he was young, but wouldn't the proper thing to have done was to apply it to his funeral expenses or at least a portion of it? I don't think it's right that she gains from his loss of life. After all, I am the one that counted on his income, not her. -- V.K., via e-mail

DEAR V.K.: In reading between the lines, your mother-in-law took out a policy on your husband many years ago when he was a child, and she is the beneficiary of that policy. Further, it would appear that she has paid the premium during those years. If that's the case, while I can understand how morally you might expect some of these monies to be used to retire the funeral expenses, I can see no legal obligation for her to do so. She was the beneficiary on a policy that was in effect legally, no fraud involved. How the money is to be used is her call. I can appreciate your thoughts and feelings, but she is on absolute firm ground.