Considerations Regarding Disinheritance: Alaska Case Law Update

You cannot completely disinherit children under Alaska law, including the ones you didn’t even know you had.

n July 20, 2018, the Alaska Supreme Court issued an opinion in the Estate of James V. Seward that held that an unknown child, who was not identified as an heir in the decedent’s Last Will and Testament, can still make a claim of paternity in a probate case for the purpose of sharing in the Statutory Exempt Property Allowance of $10,000. The holding affects the estates of all Alaska residents with children – regardless of whether those residents are aware that they have children or not. The basic facts are as follows:

James V. Seward had a valid, enforceable Last Will and Testament in place when he died.
Seward was not married when he died.
Seward’s Will stated that he had no children.
After Seward’s death, during the probate proceeding, a man asserted that he was Seward’s biological son, that he had rights as an heir, and that he was entitled to a paternity test in order to establish those rights.

In response to these arguments, the probate court disallowed the alleged son’s claims. The court concluded that a probate proceeding was not the appropriate time or place to bring a paternity action. Such claims, the court said, should have been initiated while Seward was alive. However, on appeal, the Alaska Supreme Court reached a different conclusion.

Alaska law entitles the surviving spouse of a decedent—or, if there is no surviving spouse, the bio-logical children of a decedent—to an “Exempt Property” allowance of $10,000 (AS 13.12.403). When there are multiple children, the $10,000 allowance is divided equally among all the surviving children. Under the statute, it doesn’t matter if the children are minors or dependents of the decedent; all children are allowed, by law, to share $10,000 when an individual dies without a spouse.

In the Seward case, the Supreme Court decided that this statutory allowance gives an unknown child the right to bring a claim for paternity in a probate case to prove entitlement to the allow- ance, regardless of what was written in the Will.

This holding is significant because the payment of the Exempt Property Allowance takes precedence over creditor claims, administrative expenses, and the express terms of the Will. In other words, you can expressly disinherit a child in your Will, including any unknown children, but the Alaska Supreme Court says that all children are still allowed to share in the $10,000 Exempt Property Allowance, regardless of the terms of the Will, or whether the decedent was even aware of the existence of a child.

This is a bad decision in our view, because it allows unknown and unacknowledged individuals to make claims against an estate and may allow them to file a petition for paternity after the death of the parent. The amount of money that the individual may receive is relatively small, but the decision gives all unknown or unacknowledged children the right to make a claim in the probate court that could delay and disrupt the probate process.

The case is particularly bother-some because the claimant in the Seward case had made a claim to overturn the Will and allow him to receive the entire estate as a matter of law. The court disagreed and did not allow the petitioner to invalidate the Will or otherwise receive a share of the estate, other than the Exempt Property Allowance. But by giving the unknown son the right to claim the Exempt Property Allowance, it opened the doors to every unknown, unacknowledged, and specifically disinherited child. This is a bad policy because it creates uncertainty in every estate that someone might appear out of nowhere and make a claim against an estate as an unacknowledged child of the decedent. It also creates the possibility that an unknown heir will appear after the probate is closed, or almost closed, and decide to make the claim.

Another fact that could become troublesome is that many people are now voluntarily submitting their DNA to companies in order to learn their ancestry. These companies are starting to “connect” people to one another through the DNA tests, which increases the possibility that an unknown heir might make a claim against an estate.

The solution to this problem is unclear. We recommend that our clients be candid with us about known children who they do not want to acknowledge or provide for in their estate plan. This is often a difficult situation in marriages where a child was conceived or born in a pre-marital relationship that has been kept secret.

In most situations, if you plan to disinherit a child (known or un-known), it is best to be specific in your estate planning documents that you intentionally have only provided for the children identified in the Will or trust and that you do not intend to provide for other children. If you know them, identify them as being disinherited.