When a person passes away, the property that they own must be distributed to various people such as a spouse or family members. A person can decide which people will receive their belongings and property items upon their death by drafting a will. The will can also exclude someone who might normally receive a share of the property through the state’s intestacy laws. This exclusion is referred to as “disinheritance”. 

For the person being disinherited, such exclusion can often be a shocking experience. In some cases, people may only find out that they have been disinherited once the creator of the will has passed away and the will has been executed. This can create conflicts and disputes, as courts will generally honor the deceased person’s wishes over those of disinherited family members

However, there may be certain situations where a disinherited person can dispute the property distribution. These may depend on several factors, including individual state laws, which may vary from area to area.

Can a Disinheritance be Challenged?

If you have been disinherited, then it is possible you may have an actual legal claim for your inheritance. If you are the spouse of the deceased person (the “testator”), estate laws typically prevent you from being fully disinherited of property. Generally, you will have the right to claim 1/3rd to 1/2 of your spouse’s estate, depending on the state laws where you live.  

If you are the deceased person’s child, then the will needs to clearly disinherit you through a statement or clause. Otherwise, most courts would conclude that your omission is an error, and would entitle you to inherit some of the estate. Another point you can raise with the court is whether the will was valid

In most states, a valid will must be in writing, signed and witnessed by two or more individuals, and must not use vague or contradictory language. If the courts declare a will to be invalid, then the estate is passed to the deceased’s heirs as required under state laws of the state. However, a will can also be partially invalid, so the part that is unsound or not allowed would just be removed so long as it doesn’t impact the validity of the rest of the will. 

A third issue for contesting a will is whether the testator created the will while under undue influence, or had the required testamentary capacity to make a will. In both situations, 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 courts might declare the will to be invalid. Also, there may be specific state laws which override the intentions of the will. 

What are Some Other Disinheritance Challenges?

Contrary to popular belief, wills are subject to the laws and regulations of the state they are created in. As much as possible, states will try to honor the wishes of the deceased. However, public policy and other interests can override the will in specific circumstances. Some states, for example, specifically require that a family home be given to either the surviving spouse or minor children, so that the children may have a home until they reach adulthood. 

Finally, language used in the will itself may sometimes create loopholes. Some sections which disinherit a person might be dependent upon a condition. The condition may then be questioned, rendering the disinheritance invalid. 

For example, if a parent’s will disinherits a child because they believe the child is “adequately provided for and doesn’t need anything from the estate”, the child may challenge the idea that they are “adequately provided for.” If the court determines 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 a Person is Simply not Mentioned in a Will?

Simply not being mentioned in the will, also known as accidental disinheritance, is not the same as being positively disinherited. If you have a valid legal claim to inherit from the estate of the deceased, then the court will often proceed on the assumption that the deceased intended to give you something. This is common in cases involving the deceased’s spouse or child. 

Other situations can lead to accidental disinheritance as well. For example, there might be a grammatical error in a will document that results in a beneficiary losing their rights to some property. Alternatively, there might be some unclear language or descriptions regarding a person’s identity or regarding a specific item of property. These might necessarily lead to disinheritance if the court can determine the testator’s overall intentions based on other factors (such as other documents or the surrounding context). 

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

If you believe that you have been wrongly disinherited through a will, you should consult with a lawyer as soon as possible. An experienced wills, trusts, and estates attorney in your area can review the situation, advise you of your rights, and let you know what your options are.