Disinheriting Family Members

In the context of estate planning law, “disinheritance” happens when a person intentionally chooses not to leave any of their assets to another person when they pass away. This can be done in many ways. Generally, if a person wants to achieve this, they can by writing a will which states that they do not want the named person to inherit anything.

Is It Possible to Disinherit My Spouse?

Generally, a person cannot completely disinherit a surviving spouse unless the spouse has agreed to be disinherited in a legal agreement such as a prenuptial or postnuptial agreement. All states have laws that prevent a person from disinheriting their surviving spouse. A surviving spouse has a right to make certain legally defined choices as to what assets they will receive upon their spouse’s death. For example, the law of a state may allow a spouse to choose between property left in the estate or a set percentage of the total value of the estate.

If a will does not make any provision at all for a surviving spouse, the laws of most states typically allow the spouse to inherit a certain amount, which is usually one-third or one-half of the deceased spouse’s estate. If the will does leave the surviving spouse any property, the surviving spouse usually has the right to choose between what was left in the will or an amount of money specified in the state’s law on the topic. In community property states, it is not possible to disinherit the surviving spouse because a spouse owns one-half of the marital estate.

Can I Disinherit a Child?

In every state except Louisiana, it is possible for a person to disinherit an adult child. There may be limitations in some states. A person may have to have a justifiable reason for disinheriting a child. Or the law may allow a person to disinherit a child partially only.

In Louisiana, a person cannot disinherit a child who is either under 24 or who is physically or mentally incapable of caring for themselves. Children who are 24 and older and able to care for themselves may be disinherited, but only for a “just cause” as defined under state law.

However, courts generally do not favor the disinheriting of children. Minor children cannot be disinherited. Therefore, if one wants to disinherit an adult child successfully, the will itself must state explicitly that the child receives nothing under the will. If the will simply does not make any mention of the child at all, then it may be possible for the child to contest the will. In the end, they may succeed in receiving a portion of the deceased person’s estate.

Can Any Disinherited Family Members Challenge the Will?

It is common for a disinherited person to challenge a will, especially if the person did not expect the disinheritance. In such situations, the estate will be diminished in value because it will have to pay to defend against the claim, regardless of whether the claim is or is not successful. As a result, a person might be well advised to take certain steps to try and prevent challenges to their will because someone is disinherited.

First, it might be advisable to notify any family member personally about the disinheritance. Notifying a family member who is going to be disinherited accomplishes two things:

• It removes the surprise factor, so family members know the will was not fraudulently or mistakenly made; and
• Notifying the person to be disinherited can be done in such a way as to ensure that there are witnesses and documentary evidence, so that the person cannot succeed with a claim of undue influence or another challenge to the will.

Some experts, however, advise against notifying the disinherited person about the fact that they have been disinherited. They believe that the disinherited person could undertake a campaign to pressure or at least dissuade the testator from the disinheritance and restore them to the will.

Second, it might be wise to take other actions such as creating a trust for the individuals that a person wants to inherit their property. Property being held in a trust is not considered part of the estate, so trust property is safe even if the legal battles over a will completely drain the estate. If a legal battle over disinheritance cannot be avoided, a trust can safeguard property for people whom a person wants to inherit their property.

For instance, if a person does not want a certain property item to be distributed against their wishes when they pass away, the person can have the property held in trust for a specific person or persons. There are many different types of trusts that can be used to help prevent estate conflicts and disinheritance issues.

Yet another strategy would be to enter into a contract with the person who is to be disinherited. A person could offer this individual a payment of a certain sum of money in exchange for their agreement not to challenge any will in which there is no bequest for the individual.

Or, a person can achieve much the same thing by including a “no-contest clause” in their will. A no-contest clause states that if an heir challenges the will or trust and is not successful, then they are to get nothing. Of course, the testator would leave some kind of bequest to the person, so they would not be completely disinherited.

A no-contest clause may be a good idea if you have a beneficiary who is likely to be upset by the property distributed to them. However, no-contest clauses, also referred to as “in terrorem” clauses only work if a person is willing to leave something of value to the potentially disappointed heir. It would probably be best to leave the individual enough so that a challenge is not worth the risk of losing the inheritance. A person could consider it as a good use of their money rather than paying to fight off a challenge to their will.

Keep in mind that it is not expected that every second cousin or grand-nephew would be a natural inheritor of a person’s estate. Disinheritance is often the exclusion of those who would expect to inherit, like a spouse or immediate family member. So if a person does not explicitly exclude a distant relative, a person need not fear that they would successfully contest their will.

An estate lawyer in your area can explain how to set up a trust according to your specific needs and desires.

What Are Some Other Disputes Involving Wills and Inheritance?

There are a variety of other legal conflicts that might arise in connection with a person’s estate, in addition to conflicts about disinheritance. These can involve a wide range of legal issues, including:

• Disputes over the selection of the executor of the will: The executor is the person who the testator, the person who writes the will, appoints to handle the distribution of their property after they die. For instance, a disinherited relative may be upset at the property distribution scheme and seek removal of the executor;
• Conflicts involving the distribution of specific items of property, especially highly valuable property, such as a rare piece of jewelry, a collectible automobile, or work of art;
• Possible legal challenges to the scheme for the distribution of the property in general;
• Issues involving fraud or otherwise illegal distributions of the estate assets;
• Disputes that involve a person who may only be very distantly related to the testator trying to claim a part of the inheritance.

Careful estate planning with a qualified estate planning attorney can help avoid these disputes.

Do I Need a Lawyer for Help with Disinheritance Issues?

If you are thinking about your will, you would be well advised to consult with an estate planning attorney. An inheritance attorney can help you draft a will that accurately reflects your wishes and successfully disinherits someone if that is your intention.

If you have been disinherited in the will of a member of your family, you should talk to a lawyer near you. Your attorney can help you to find out if the disinheritance is legal and decide whether you can or should challenge the disinheritance if that is possible under the circumstances.