What to Do If You Have Been Disinherited

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Being disinherited can be a shocking experience.  Many people only find out that they have been disinherited once the will is read.  Unfortunately, courts will generally honor the deceased’s wishes.  However, there are a few situations where you can dispute disinheritance.

How Can I Challenge the Disinheritance?

First, even though you have been disinherited, you might have an actual legal claim for your inheritance. If you are the spouse of the deceased, the law prevents you from being fully disinherited – generally, you have the right to claim 1/3 to 1/2 of your spouse’s estate, depending on where you live.  If you are the deceased’s child, then the will needs to clearly disinherit you.  Otherwise, most courts would consider your omission to be an error, and would entitle you to inherit some of the estate.

Another point you can contest is whether the will was valid.  A valid will must be in writing, signed and witnessed by 2 or more individuals, and not use vague or contradictory language.  If the will is declared invalid, the estate is passed to the deceased’s heirs as required under the law of the state you are in.

A third issue that often comes up is whether the deceased was under undue influence, or had the required mental capacity to make a will. In both instances, the will is presumably not as the deceased would have wanted if everything was normal.  If you can prove either undue influence or mental incapacity, then the will might be declared invalid.

Fourth, there may be laws which override the intentions of the will. Contrary to popular belief, wills are subject to the laws of the state. States try to honor to the wishes of the deceased, but public policy and interests may override the will in specific circumstances. Some states, for example, specifically demand that the family home be given to either the surviving spouse or to minor children so that the children may still have a home until they reach adulthood.

Finally, the language of the will itself may sometimes create loopholes. If the section which disinherits the person is dependent upon a condition, than the condition may be questioned, rendering the disinheritance invalid. For example, if a parent’s will disinherits a child because the parent believes the child is “adequately provided for and doesn’t need anything from the estate”, the child may challenge the notion that he or she is “adequately provided for”. If the court finds that the condition hasn’t been met, than the parent may in fact intend for the child to inherit from the estate after all.

What If I’m Simply Not Mentioned in the Will?

Not being mentioned in the will, also known as accidental disinheritance, is not the same as being disinherited. If you have a valid legal claim to being a heir to the estate of the deceased, such as being the deceased’s spouse or child, than the court will proceed on the assumption that the deceased intended to give you something.

Do I Need an Attorney If I’ve Been Disinherited?

If you believe that you have been wrongly disinherited, you should consult with a lawyer as soon as possible.  An experienced estate planning attorney can review the situation, advise you of your rights, and let you know what your options are.

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Last Modified: 05-05-2014 03:51 PM PDT

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