Securing a Dependent Child’s Right to an Inheritance

The passing of a parent is an emotionally devastating event, particularly for a dependent child. While estate planning aims to secure a family’s future, the legal system recognizes that certain dependents require immediate and mandatory financial protection, regardless of the decedent’s will. Understanding the distinct rights of a dependent child in probate law is crucial for both estate planning and estate administration.

The Core Concept: Defining the Dependent Child in Probate

In the context of estate law, a “dependent child” typically refers to a minor child who is under the age of legal majority (usually 18). However, in many states, this definition can extend to an adult child with a disability or an unmarried adult child living with and being supported by the deceased parent.

A fundamental principle in US inheritance law is that while parents can generally disinherit their adult children, the legal protections for a minor or financially dependent child are often mandatory and may override the instructions in a will. These protections are designed to ensure the child’s basic needs—such as maintenance, shelter, and education—are met following the loss of the primary breadwinner.

Mandatory Protections: Family Allowance and Exempt Property

Two critical mechanisms exist in many state probate systems to protect dependents immediately after a death:

1. The Family Allowance (or Child’s Award)

The family allowance is a court-ordered distribution of funds from the estate provided to a surviving spouse, minor children, or incapacitated adult children for their maintenance during the administration of the estate, often covering a full year of support.

• This allowance is given priority over most other claims against the estate, including general creditors.
• The amount is determined by the court based on the child’s needs and the lifestyle they were accustomed to living when the parent was alive.
• In some jurisdictions, a minor child is not entitled to the allowance if they have adequate property of their own for one year’s maintenance.

2. Exempt Property and Homestead Rights

Many state codes provide for certain property to be “set aside” for the surviving spouse and minor or dependent children, exempting it from creditor claims. For example, in some states like Texas, the family homestead and a certain amount of personal property (up to $100,000 in specific goods like furnishings and vehicles) pass free from claims of general creditors to the surviving spouse, minor child, or adult child living in the home. The surviving spouse and minor children also often have the exclusive right to occupy the homestead for life.

The “Pretermitted Child” Rule: When a Will Excludes a Child

If a parent creates a will and later has a child, but fails to update the will to include them, that child may be considered a “pretermitted child” (or omitted child). The law presumes the parent did not intend to disinherit the child and simply did not revise the document.

In this situation, the pretermitted child is often legally entitled to a portion of the estate—usually the share they would have received if the parent had died without a will (intestate). This right generally takes effect regardless of the will’s contents, which is a powerful protection for a child who was unintentionally overlooked.

Estate Planning to Protect Dependent Children

The most effective way to protect a dependent child is through careful estate planning, which bypasses the complexities of guardianship and intestacy laws.

Estate Tool	Benefit for Dependent Child
Revocable Living Trust	Allows the grantor to specify when (e.g., age 25 or 30) and how funds are distributed, preventing a minor from receiving a lump sum at age 18. Assets avoid probate.
Uniform Transfers to Minors Act (UTMA)	An inheritance can be placed in a custodial account managed by a custodian. Assets are distributed to the child at age 18 or 21 (sometimes 25), avoiding the need for a court-appointed guardianship.
Special Needs Trust	Essential for adult or minor children with disabilities. This trust holds assets for the child without jeopardizing their eligibility for essential government benefits, such as Medicaid or Supplemental Security Income (SSI).
Naming a Guardian in a Will	A will is the only document that legally names a guardian for your minor children’s person, ensuring they are cared for by an individual of your choosing, should both parents pass away.

Summary of Dependent Child Protections

Securing the financial future of a dependent child requires proactive measures beyond simply drafting a will. The law provides certain mandatory protections, but the most control comes through strategic planning.

1. State laws mandate a “family allowance” or “child’s award” to provide immediate, priority financial support for minor children or incapacitated adult children during the estate administration process.
2. The “pretermitted child” doctrine protects children who were born or adopted after the creation of a will that failed to account for them, allowing them to claim an intestate share of the estate.
3. For minor children, a trust (such as a Revocable Living Trust or a Testamentary Trust) is the preferred method for transferring assets, as it avoids court guardianship and allows the parent to set conditions and ages for distribution.
4. Adult children who are financially dependent or disabled require specialized planning, most notably a Special Needs Trust, to receive an inheritance without losing essential government benefits.
5. Legal documents like wills and trusts are also crucial for naming a trusted guardian to manage both the child’s person and their estate assets until they reach the age of majority.

Frequently Asked Questions (FAQ)

Can a parent intentionally disinherit a minor dependent child?

While a parent can generally disinherit an adult child, most states provide mandatory protections for minor or incapacitated dependent children through “family allowance” laws. These allowances often take priority over the will and general creditors to ensure the child has basic support for a specified period after the parent’s death.

What is a “guardian of the estate” and how is it different from a guardian of the person?

A guardian of the person is responsible for the child’s day-to-day care, education, and upbringing. A “guardian of the estate” is a person appointed by the court (or named in a will/trust) who is legally responsible for managing the minor child’s inherited assets until the child reaches the age of majority (usually 18).

What if the parent dies without a will (intestate)?

If a parent dies without a valid will (intestate), the dependent child’s inheritance is determined by the state’s intestate succession laws. Children are typically entitled to a portion of the estate, but the entire process is overseen by the court, which can be time-consuming and costly.

How does a Special Needs Trust help a dependent adult child?

A Special Needs Trust (SNT) is designed to hold assets for the benefit of a dependent child (minor or adult) with a disability. The SNT provides financial support and pays for costs not covered by government benefits, ensuring the child can inherit money without losing their eligibility for needs-based programs like SSI or Medicaid.

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AI-Generated Content Disclaimer: This post provides general legal information and is not a substitute for professional legal advice, nor should it be interpreted as a consultation. Estate law is complex and varies significantly by state. Always consult with a qualified Legal Expert to discuss your specific situation.

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