In the context of estate planning law, “disinheritance” is where you choose to intentionally keep someone from receiving something from your estate after you die. This can be done in many ways. You can usually disinherit a person by stating in your will document that you do not want that person to inherit anything.
Is it Possible to Disinherit My Spouse?
It is generally not possible for a person to completely disinherit a spouse, unless they agree to be disinherited in a legal agreement such as a prenuptial agreement. All states have estate laws that prevent a person from otherwise disinheriting the surviving spouse. These laws give the surviving spouse general rights to choose what they receive upon their spouse’s death.
If the will leaves nothing specific to the surviving spouse, the state’s law will typically allow him or her 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 the amount of money set by the state’s laws. In community property states, it is not possible to disinherit the surviving spouse because he or she legally owns one-half of the marital property.
Can I Disinherit a Child?
In every state except Louisiana, it is possible to completely disinherit your child under estate laws. However, courts generally do not like to see children disinherited. Therefore, the will document must state explicitly that the child receives nothing under the will in order to successfully disinherit a child. If the will simply makes no mention of the child at all, then it may be possible for the child to contest the will.
Can Any Disinherited Family Members Challenge the Will?
It is somewhat common for a disinherited person to challenge the will, especially if the disinheritance was not expected. In such situations, it will generally cost the estate money to defend against the claim, regardless of whether the claim wins or loses. As a result, it is important to take certain steps to discourage and prevent will challenges.
First, it might be advisable to speak with family members personally about the disinheritance. Such discussions can often be uncomfortable, depending on your relationship with your family members. However, talking about disinheritance accomplishes two things:
- Talking removes the surprise factor, so family members know the will wasn’t fraudulently or mistakenly made; and
- Talking and discussing ensures there are witnesses, so that family members cannot easily assert an undue influence claim.
Second, it might be wise to take other actions such as creating a trust for people you want to inherit your property. Property being held in a trust is not considered part of the estate, so trust property will be safe even if the legal battles completely drain the estate. If a legal battle over disinheritance can’t be avoided, a trust can safeguard property for people who you want to inherit your property.
For instance, if you don’t want a certain property item to be distributed against your desires when you pass away, you can have the property held in trust for a specific person or persons. There are many different types of trusts that can serve different purposes. These can often help prevent estate conflicts and disinheritance issues.
However, it is not expected that a 2nd cousin or a grand-nephew would be a natural inheritor of a person’s estate. It’s important to keep in mind that disinheritance is often the exclusion of those who would expect to inherit, like a spouse or immediate family. So if you did not explicitly exclude a distant relative, there is little to fear that they can come and successfully contest your will.
An estate lawyer in your area can explain how to setup a trust according to your specific needs and desires.
What are Some Other Disputes Over Wills and Inheritances?
Besides disinheritance conflicts, there can be various other legal conflicts that might arise in connection with a person’s estate. These can involve a wide range of different legal issues and estate conflicts. These can include:
- Disputes over the selection of the will executor (this is the person that the will creator 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 a removal of the executor;
- Conflicts involving the distribution of specific items of property, especially highly valuable property item (such as a rare piece of jewelry or a collectible automobile);
- Conflicts or complaints about the property distribution scheme in general;
- Issues involving fraud or illegal distributions of property;
- Disputes involving the nature of familial relationships (for instance, a person who is very distantly related trying to claim a part of the inheritance); and
- Various other legal conflicts.
These types of disputes can largely be avoided through careful estate planning and clearly-written will documents.
Do I Need a Lawyer for Help with Disinheritance Issues?
If you plan on writing your will, you may want to consult with a estates planning attorney. An estate planning attorney can help you draft a will document that legally disinherits whomever you wish.
If you were disinherited by your own family member’s will, you should talk to a lawyer near you. Your attorney can help you to find out if the disinheritance is legal and how you can challenge the disinheritance if needed.