A will is a legal document used to distribute a person’s estate and assets upon their death. This person is known as the testator, and those receiving their property are known as beneficiaries. Property that may be redistributed can include both real and/or personal property; a home, a vehicle, a trust fund, etc. If a person dies without first leaving a legal and valid will, their estate will be subject to their state’s intestacy laws.
By drafting a legal and valid will, the testator is deciding who will receive their property. However, a person’s will can also be utilized to determine who will not receive your property. If a will excludes a person who would have otherwise received a share of the testator’s assets, the testator has disinherited that person. Disinheritance occurs when the testator actively takes steps to ensure that a specific person is excluded from inheriting anything from the estate.
Disinheritance may be done purposefully, or accidentally. An example of purposeful disinheritance would be placing a statement in the will such as, “I leave nothing to my son, Jim.” An example of accidental disinheritance would be a scenario in which the will has specified that the testator’s son is to receive a business, while the testator’s daughter is to receive the bank accounts.
However, if the business was sold and the testator’s will was not updated after the sale of the business, the money from the sale would pass to the daughter through the bank accounts. Thus, the son would be accidentally disinherited.
Is There Anyone Who May Not Be Disinherited?
A child can typically be disinherited, if the testator’s will document clearly states that the named child is not to be included as a beneficiary. In every state except for Louisiana, it is possible to completely disinherit a child under state laws. However, as 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 simply does not mention the child, the child may contest the will. All other parties are essentially disinherited by default, as a person who is not a spouse or a child and is not mentioned in the will document will not inherit any of the testator’s property.
Testators may try to disinherit their spouse for many reasons. One such reason is that the spouse is already well off and does not need nor want any inheritance. Another reason is as simple as a bitter dispute. In general, a testator cannot disinherit their spouse, at least not completely.
Most states have laws known as 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. Other states, such as California, 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. However, a person is free to distribute their half however they wish in their will.
The only actual, valid way to disinherit a spouse is for the testator and their spouse to agree to the disinheritance ahead of time. If the spouse has no issue with receiving less than the law allows, and does not dispute the will, there is no problem with the disinheritance. Couples may also choose to sign contracts, such as prenuptial or postnuptial agreements, in which each spouse waives their right to the other spouse’s property.
Can Disinherited Family Members Contest the Will? What Are Some Other Common Conflicts?
A disinherited family member may contest the will, especially if the disinheritance was not expected. Such a situation would generally cost the estate money to defend against the claim, regardless of whether the claim wins or loses. As such, it is advisable to speak with family members about the disinheritance beforehand. 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.
A person may choose to create a trust for those they wish to inherit their property. Property held in trust is not considered to be part of the estate; as such, the property will be safe, even if a contest completely drains the estate of its assets.
Other common conflicts regarding wills and inheritances include:
- Disputes over who is to be the will’s executor;
- Conflicts involving the distribution of specific items, such as jewelry; and
- Issues involving fraud or illegal distribution of property.
Do I Need an Attorney for Disinheritance?
A skilled and knowledgeable estate 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 would prefer to be excluded. Thus, it is important to consult with an estate planning attorney in your area should you be drafting your estate.