How to Disinherit a Family Member

When planning your estate, you have the right to distribute your assets any way you choose. There are a myriad of reasons why a person might decide to disinherit a would-be beneficiary. The method of disinheriting someone depends on the person’s relationship to you.

Disinheriting Your Spouse

Unless your spouse agrees in writing, it is impossible to disinherit your spouse completely. If your spouse agrees to be disinherited, he or she must either abandon you or agree to be disinherited through a legal contract such as a prenuptial or postnuptial agreement. Otherwise, state law protections prevent a decedent’s surviving spouse from getting nothing from the decedent’s estate. In most states, a spouse who has not agreed to be disinherited but was left out of the deceased spouse’s will receives half of the assets acquired during marriage. In other states, a spouse may be entitled to receive only enough assets to provide one year of support. If you are considering disinheriting your spouse, it is important to review your state’s spousal elective share laws.

Disinheriting a Child

As a matter of public policy, it is almost impossible to disinherit a minor child in any state. In contrast, it is possible to disinherit adult children in almost all states. Your adult child typically has no right to take from your estate. Therefore, if you wish to disinherit an adult child, you may do so through your will and trust. Because state law governs estate distribution, however, it is important to review state laws to ensure that your disinheritance strategy complies with state law.

Protect Your Decision

If you decide to disinherit a would-be beneficiary, it is important to employ strategies that will protect your estate plan from a long and costly court battle. One such strategy is simply to include your reasons in your will. For example, if you decide to disinherit a child who is well-off and does not need the inheritance, explain this in your estate plan. Another strategy is to execute successive wills or trusts over time that all disinherit the individual. In a case where the individual contests your will or trust on the grounds that you lacked capacity, the successive documents can be used to support your intent to disinherit.

Disinheriting an individual requires that you follow your state’s laws precisely. If you wish to disinherit a family member, consider consulting an estate planning attorney who can guide you through the process so that a court will recognize your intent to disinherit.