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Father Disinherited From Son’s Estate For Abandonment

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A child — particularly a minor child — can inherit a share of an absent parent’s estate even after abandonment by the parent. But what about the less common circumstance of a child dying young. Will abandonment by a parent prevent the parent from inheriting from the child’s estate?

Brandon’s story

In 1989 a child was born in Kentucky, to Melanie, an unmarried woman. She named him Brandon.

It wasn’t until Brandon was seven years old that Melanie sought to identify his father, and to secure a child support order. Bobby agreed that he was the father. He insisted that he had given some support as it had been requested. The Kentucky court ordered him to start paying $281 per month directly to Melanie.

For the next three or four years, Bobby gave Melanie a year’s worth of support each year. After that Brandon qualified to receive Social Security payments based on Bobby’s record, and he stopped making separate payments.

When Brandon was eight, he moved with Melanie to another part of Kentucky. After that, Bobby saw Brandon just twice — once when Brandon went swimming on his uncle’s farm, and once for about twenty minutes at a truck stop.

Melanie remarried, and at age 11 Brandon asked her to help him change his last name to his stepfather’s. For the rest of his life, Bobby had no direct contact with Brandon and paid no child support.

Was Bobby guilty of abandonment?

Had Bobby “abandoned” Brandon? His later testimony was that he sent an occasional birthday card and a few presents, and that the Social Security payments helped support Brandon.

Melanie, on the other hand, argued that he had made no effort to maintain the “care and maintenance” of Brandon. That, under Kentucky law, is the essence of abandonment. The Kentucky law does indicate that an abandoning parent can be excused if he or she resumes care and maintenance of the child for a year. It also recognizes that the failure to provide care might be because a court has ordered limited contact; in such a case, the parent must be able to show that he or she has paid all support payments.

As you can probably infer from Brandon’s story so far, the legal question became pertinent because of the ultimate tragedy of Brandon’s young life. At age 24, Brandon died in an automobile collision. The driver of another car crossed the centerline and struck Brandon’s car.

Brandon was not married, had no children, and had never signed a will. His estate would pass by intestate succession, to his heirs at law. Ordinarily, that would mean that his two parents would split his estate.

In addition to division of his estate, Brandon’s tragic death raised another question. His survivors would have a claim for wrongful death against the other driver. How would they divide any wrongful death proceeds?

The legal effect of abandonment

Under Kentucky law, a parent who abandons his or her child is not entitled to inherit from the child’s estate. Similarly, a parent guilty of abandonment is not entitled to share in any wrongful death recovery.

Melanie argued that Bobby should receive nothing from Brandon’s estate, and no share of the wrongful death settlement. She insisted that Bobby’s abandonment precluded him from receiving any funds from Brandon’s death.

The Kentucky trial judge agreed with her. Though there was some slight evidence of continuing contact, there was little evidence of meaningful contact. Social Security had apparently paid a total of $5,916 to Melanie for Brandon’s benefit. That would be about 21 months of Bobby’s $281 support order. The judge ordered that all of Brandon’s estate, and the entire wrongful death settlement, should go to Melanie.

Bobby appealed, but unsuccessfully. The Kentucky Court of Appeals ruled that Melanie had proven her case by a preponderance of the evidence, and that was all that they required. Bobby’s argument that Melanie’s standard of proof should have been the higher, “clear and convincing evidence,” standard failed.

The appellate court noted that the wrongful death settlement proceeds were not a part of Brandon’s probate estate. The trial judge and counsel had treated the two as intertwined. Because Kentucky’s laws on wrongful death and on disinheritance by abandonment are nearly identical, the outcome would have been the same. Simms v. Estate of Blake, May 11, 2018.

Would Arizona law be the same?

Like Kentucky, Arizona has a statute on abandonment in the context of probate proceedings. Arizona Revised Statutes section 14-2114(C) is much shorter than Kentucky’s statute, however, and much less helpful. It simply provides that:

Arizona’s law on wrongful death claims is similarly inconclusive. Arizona Revised Statutes section 12-612 indicates that a wrongful death claim belongs to the surviving spouse, children and parents of the deceased. The claim belongs to the claimants “in proportion to their damages.”

Does that mean that the result in Brandon’s case would have been different in Arizona? Not necessarily, though the outcome might be less certain in an Arizona court. Clearly, Bobby had limited involvement in his son’s life — even if there might be a logical explanation for the limitations.

How do we resolve these ambiguities in Arizona? That’s when you can use the help and advice of a Tucson elder law attorney. Of course, every set of facts will differ.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.