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Disinheriting Family Members

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What Is Disinheritance?

Disinheritance is where you choose to intentionally keep someone from receiving something from your estate after you die. You can usually disinherit someone by stating in your will that you do not want that person to inherit anything. 

Can I Disinherit My Spouse?

It is generally not possible to completely disinherit your spouse, unless they agree to be disinherited in a legal agreement such as a prenuptial agreement. All states have laws that prevent a person from otherwise disinheriting the surviving spouse. These laws give the surviving spouse the right to choose what they receive upon their spouse's death. 

If the will leaves nothing to the surviving spouse, the state's law will 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 something, he or she 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 My Child?

In every state except Louisiana, it is possible to completely disinherit your child. However, since courts do not like to see children disinherited, the will must state explicitly that the child receives nothing under the will in order to successfully disinherit your child. If the will simply makes no mention of the child at all, it may be possible for the child to contest the will. 

Can My Disinherited Family Members Challenge the Will?

It is not uncommon for a disinherited person to challenge the will, especially if the disinheritance was a complete surprise. It will cost the estate money to defend against the claim, regardless of whether the claim wins or loses. As a result, it may be prudent to take certain steps to discourage will challenges.

First, it might be advisable to speak with family members about the disinheritance. Such discussions may be uncomfortable, depending on your relationship with your family members. However, talking about disinheritance does two things:

  • Talking removes the surprise factor, so family members know the will wasn’t fraudulently made.
  • Talking ensures there are witnesses, so that family members cannot easily assert an undue influence claim.

Second, it might be wise to create a trust for people you want to inherit your property. Trust property 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 is inevitable, a trust can safeguard property for people you do want to inherit your property.

Do I Need a Lawyer to Disinherit a Family Member?

If you are writing your will, you may want to consult with an estate attorney. An estate planning attorney can help you draft a will that legally disinherits whomever you wish.

If you were disinherited by a family member's will, you should talk to a lawyer to find out if the disinheritance is legal and how you can challenge the disinheritance. 

Photo of page author Jason Cheung

, LegalMatch Legal Writer

Last Modified: 02-28-2018 03:49 AM PST

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