Right to Direct Inheritance

Your right to direct your own inheritance—WKYC news 4/02/09

Kim: Do you have the right to say who inherits your assets ? A recent court case concluded that a grandparent could not put restrictions in their will prohibiting their grandchild from inheriting their assets if they married outside of their religion. Here to discuss how Ohio restricts your rights give away your money is attorney Michael Solomon.

Kim: Mike , I always thought you were allowed to give your money away anyway you felt like it. Does the law control how I give my money away ?

Mike: Yes. There was an Illinois case which was just decided a few months ago said that a provision in the trust of the grandparent disinheriting a grandchild if they married outside of their religion was invalid. In Ohio there are several older cases that have held that you could put a provision in your will that states that a child or grandchild is disinherited if they marry outside of the religion. So right now I believe you can still do that in Ohio.

However , Ohio has recently adopted the Ohio Trust Code which states that a trust may not have provisions in it that are contrary to public policy. The same rule applies to wills. No one really knows what that means but many commentators feel that you should not be able to put religious restrictions in your will and trust. So who knows if Ohio law won't change over the years

There are some things that you clearly cannot do. A provision in your will that said your daughter is written out of the will unless she dumps her husband is probably is not enforceable. Also Ohio law prohibits your will from writing your spouse out completely. A spouse is entitled to between 1/3 and 1/2 of the probate estate no matter what the estate planning document states. However you can write your spouse out of an inheritance with a trust.

Kim: What sort of provisions can I put in my will?

Mike: Some provisions that you can put in a will or trust that are enforceable are:

  • Remarriage Clause: You could put in your trust that your spouse loses her inheritance if she remarries
  • Good Grades- Some people put in their trust that child or grandchild loses there inheritance if they don't get a good job or good grades.
  • Good Behavior- a trust may provide that someone receives a portion of their inheritance if they a are drug free for a period of time
  • Don't Complain. – Some wills and trusts have a clause in it that says if you dispute the will and trust you lose your inheritance.

The bottom line is that will and a trust are private documents and except for some limited situations that are deemed against public policy, you can dispose of your assets any way you want. You should sit down with a lawyer who specializes in wills and trusts when you have your wills or trusts prepared.

Kim: Thanks Mike. If you have any questions for Michael, e-mail us at weekendmorningshow@wkyc.com, and he will try to answer your questions next week.