Yes, you can disinherit someone from your will, but there are important legal considerations to keep in mind depending on who the person is and where you live. Disinheriting someone means explicitly stating in your will that you do not want that person to inherit any of your estate.
Key Considerations:
- Disinheriting Children:
- In most states, you can disinherit your adult children by clearly stating your intent in your will. Simply leaving them out might not be enough because they could challenge the will in court, claiming that their exclusion was accidental.
- Some states have laws protecting minor children or dependent children from being completely disinherited, ensuring they receive some form of support.
- Disinheriting a Spouse:
- Disinheriting a spouse is more complicated. Most states have laws, called elective share or community property laws, that protect spouses from being entirely disinherited. These laws typically allow a spouse to claim a portion of the estate, regardless of what the will says.
- In community property states, spouses are entitled to half of the marital assets accumulated during the marriage. In elective share states, a spouse may have the right to claim a set percentage of the estate, often one-third to one-half, even if the will leaves them nothing.
If you wish to disinherit your spouse, you may need to have them waive their rights in a prenuptial or postnuptial agreement, or consider using other estate planning tools, like irrevocable trusts, to transfer assets outside the probate process.
- Disinheriting Other Relatives:
- You can generally disinherit extended family members such as siblings, cousins, nieces, and nephews without legal complications. It’s important to clearly state your intent in the will to avoid confusion or potential challenges.
- Explicitly Stating the Disinheritance:
- If you intend to disinherit someone, it is crucial to clearly state this in your will. Failing to mention a potential heir could lead to them claiming that the omission was accidental.
- For example, instead of simply omitting their name, the will should include a statement such as, “I am intentionally disinheriting my son, [name], and he is to receive nothing from my estate.”
Reasons to Disinherit Someone:
- Estranged Relationships: You may wish to disinherit someone due to personal reasons, such as a strained or non-existent relationship.
- Provide for Certain Heirs: You may want to leave all your assets to certain heirs or charitable organizations and exclude others.
- Financial Independence: You may believe that the person is financially independent and does not need to inherit from your estate.
Avoiding a Will Contest:
If you anticipate that the person being disinherited might contest the will, here are some strategies to strengthen your position:
- Include a No-Contest Clause (In Terrorem Clause): This clause states that any beneficiary who contests the will risks losing their inheritance entirely. However, these clauses are not enforceable in all states.
- Explain Your Reason: While not legally required, explaining your reasons for disinheriting someone in your will or in a separate letter may reduce the likelihood of a legal challenge.
- Proper Legal Formalities: Ensure the will is drafted and executed properly, following all state laws. If the will is legally sound, it will be harder to contest on technical grounds.
Conclusion:
You have the right to disinherit someone from your will, but it’s essential to follow the proper legal procedures, especially when dealing with spouses and children. Consulting with an estate planning attorney can help ensure that your will accurately reflects your wishes and minimizes the chances of a successful legal challenge.