You will decide who will receive your property after your death by drafting a legal and valid will. Your will can also be utilized to decide who will not receive your property. This is disinheritance – to be excluded from receiving assets, money, or distributions from an estate or trust.
You cannot disinherit someone if there’s no will. Some testamentary document, either a will or trust, clearly stating your intentions, is required to disinherit a child, spouse, etc. If there is no will or trust, then the laws of intestate succession will control who inherits what from your estate.
Is there a difference between being disinherited and simply being left out of a will? Yes. Being left out of a will means that someone wasn’t identified as someone to whom you left a gift or a bequest. In such a case, if the person is a family member, they have recourse through the court system to challenge the distribution and claim a share.
In short, simply leaving someone out of your will does not necessarily mean they will not be able to receive something. On the other hand, disinheriting them by stating so explicitly will effectuate your desires.
Is There Anyone Who May Not Be Disinherited?
In some states, a testator cannot completely disinherit their spouse by simply leaving them out of the will. Most states have equitable distribution property laws, which allow spouses to choose between taking what is left for them in the testator’s will or taking a share of the estate. Such a share generally amounts to between one-third and one-half of the estate if the language of the will makes clear that the spouse is to receive nothing that will be respected in probate court if it comes to that.
Other states – Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin – follow community property laws. These laws state that one-half of what a person has made or acquired during their marriage belongs to their spouse, both during and after their marriage.
So someone in a community property state cannot take away the spouse’s half of the couple’s assets, but a person is free to distribute the other half however they wish in their will. State marital laws govern how much a spouse is entitled to in a legal separation, divorce, or the death of the other spouse, but these laws differ by state.
Any children who are still minors are legally protected from disinheritance. By law, they will be entitled to any financial support they’d receive where they live until they are legal adults. Your minor children will be awarded their share if the estate has money.
On the other hand, an adult child can typically be disinherited if the testator’s will clearly states that the named child is not to be included as a beneficiary. In every state except Louisiana, it is possible to disinherit a child under state laws completely.
However, courts generally do not like to see children disinherited. As such, the will document must explicitly state that the child is to receive nothing through the will. If the will does not mention the child, the child may contest the will. If you truly want to disinherit an adult child, you must include this direct information in your will, making it clearly understood that the omission is intentional and not an oversight.
What are Common Reasons for Disinheriting Someone?
There are logical reasons for leaving someone out of your will. Examples include:
- Choosing to leave an estate to charity: Sometimes, a decision is made to leave everything in (or a percentage of) an estate to a charitable cause. If you have previously designated other beneficiaries to receive any portion of your estate, you may need to disinherit them so you can redesignate a charity of your choice as a beneficiary.
- Change in marital status (divorce): If you’ve divorced, you need to update your will to make clear that you do or do not intend to leave anything to your ex-spouse.
- Estrangement: If you’re estranged from a family member, you might want to disinherit them.
- Medical/health status: Sometimes, drastic changes in one beneficiary’s health condition may mean you want or need to disinherit others. Doing so can potentially allow more of your estate to benefit an heir who needs it.
- Lack of need (or increased need): Often, there is a significant difference in the financial needs of your offspring. In this case, you could disinherit one child to allow more inheritance to pass through to another. Disinheritance allows your estate to be split unevenly or given in its entirety to one heir who requires more financial support.
- Previous support or gifts already given: Sometimes, people give substantial gifts to a spouse or child while they’re still alive. You could agree that you are giving their portion of the inheritance to them while you are still alive.
Children are the most frequently disinherited people. Why would you disinherit your child? Common reasons include:
- You have no relationship with the child
- You feel that a well-to-do child doesn’t need more money/assets
- Your child is not financially responsible
- Your child is addicted to drugs, alcohol, gambling, or another vice, and you don’t want them to have access to money that would be used to support their addiction
- You have other support plans for the child
- You disapprove of the child’s life choices
- You feel abandoned by a child, especially late in life
Can Disinherited Family Members Contest the Will?
A disinherited family member may contest the will, especially if the disinheritance was not expected. The only people who can contest a Will would be a spouse, child, cohabitee, or person mentioned in a current or previous will.
Such a situation would generally cost the estate money to defend against the claim, regardless of whether the claim wins or loses. As such, speaking with family members about disinheritance beforehand is advisable. Although difficult, such a discussion accomplishes two goals:
- The surprise factor is removed, so family members are aware that the will is not mistaken or fraudulent; and
- Talking ensures that there are witnesses, so family members cannot easily assert an undue influence claim.
Keep in mind, anyone can contest a will and claim they are entitled to a portion of your estate. They might claim that you verbally promised them a portion of your estate. Even if it’s not likely they’d be successful in their attempt, the time, cost, and emotional stress on your rightful heirs is enough reason to try and avoid any disgruntled claims.
You can reduce the likelihood of someone successfully challenging your will by leaving them a small gift. This makes it clear that you did not forget to include them in the will – you did include them, but the named gift is all they are to receive.
Do I Need an Attorney for Disinheritance?
A skilled and knowledgeable last will and testament attorney can assist in the overall estate planning process. Additionally, an experienced estate planning attorney can ensure that your estate will be distributed according to your wishes, including disinheriting whoever you prefer to be excluded.
Thus, it is important to consult with an estate planning attorney in your area so that they can draft your will to ensure that all of your wishes are honored.
