In New Hampshire, you can disinherit your child. You do this by putting explicit language in your Will, or your Trust, if you have one, stating that you are disinheriting him. For purposes of this article and to simplify, I will refer to the Will as your estate planning document, yet the general concepts discussed equally apply to a Trust you create. There are various ways to disinherit a child. The most often used method is to specifically name or refer to the child, or a class, such as “my children” or “my son, Alex, and his issue,” that you intend to disinherit, and you must then state that you intend to disinherit that child. Another way to disinherit a child is to state that you give that particular child one (1) dollar, or a small sum of money. Explaining to your estate planning attorney what is going on in your family will assist your attorney in counseling you on the best option.
New Hampshire has a strong policy of protecting “pretermitted heirs,” which are heirs that were not mentioned in a Will. N.H. R.S.A 551:10 states that “[e]very child born after the decease of the testator, and every child or issue of a child of the deceased not named or referred to in his will, and who is not a devisee or legatee, shall be entitled to the same portion of the estate, real and personal, as he would be if the deceased were intestate.” Simply put, you do not name or refer to your child in the Will, then he can claim an inheritance as if you died without a Will. Historically and currently, the rationale is that if you did not mention him anywhere in your Will, you most likely forgot about him, because it is human nature to forget things.
The Probate Court will not consider outside evidence in determining your intent, such as one of your children stating that you had not spoken to the “unmentioned” child in ten years. Instead, the Court will look at the language provided in the document itself and if there is not specific language stating that you wished to disinherit your child, then your child will be entitled to receive his share of your estate, according to the laws of New Hampshire.
Andrea Nelson is an attorney at Hamblett & Kerrigan who focuses her practice in the area of estate planning, including wills, trusts, health and financial powers of attorney. Attorney Nelson can be reached at [email protected].