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Can You Disinherit Family Members?

Disinheritance refers to the desire of a decedent to cut a family member out of his or her will, such that that party inherits nothing. A person may not desire to leave his or her estate property to a family member due to strained relationships, family arguments, subsequent marriages, a special needs child or relative, a wealthy child through marriage or career, or other reasons.

Disinheriting Family Members

The process to disinherit family members (other than a spouse or child) is relatively simple and straightforward. In most cases, simply not mentioning parties in your will is sufficient to leave them out of any inheritance grants. If a party is not mentioned, that party will take nothing under the will. The process that applies to spouses and children, however, is not quite so simple, as these are protected individuals under most states' laws. Still, the aim and goal of disinheritance can still be accomplished with respect to these typically protected individuals.

Disinheriting a Spouse

With respect to the majority of U.S. states, a person is not able to disinherit his or her spouse entirely. Spouses are able to circumvent this rule somewhat with express contrary written agreements in community property states. In other states, spouses have to engage in will challenges and estate litigation to contest awards of property less than the state’s intestacy (situations in which there is no will) provisions.

  • Community Property States—Parties residing in community property states such as Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, are able to accomplish disinheritance of a spouse only if they have entered into written community property contracts that provide expressly and differently from the default rule. That rule dictates that spouses own automatically one-half of what is earned by either spouse during a marriage. However, even community property states allow spouses to bequeath the other remaining half of their property in whatever manner, as well as any separate property.
  • Other States—In non-community property states, there is no default provision that property a couple has acquired during their marriage is automatically deemed to be owned by the spouses in equal parts. These states usually allow a spouse to claim anywhere from a quarter to half of the marital estate, regardless of what the decedent spouse's will says. The purpose of intestacy provisions is to protect spouses from situations of disinheritance. Anti-disinheritance provisions are only triggered if the surviving spouse undertakes estate litigation and challenges the devise to him or her in the will. Spouses who do not challenge the will receive what is set forth expressly in the will (even if below their entitlement by law).

Disinheriting a Child

Laws restrict a parent's ability to disinherit a child. These protective laws grant inheritance rights to minors. Some states protect minors from losing their family homes, as they require a head of household who dies to bequeath the family's residence to a spouse or minor child, if either is surviving, rather than any third party. Many states also have laws that shield children from disinheritance committed accidentally. This may arise if a child is born after a will is made. The laws assume a party forgot to make an amendment or revision to the will to include a gift to that child on an accidental basis. The forgotten child is presumed to receive the same share of a parent's estate as that child would have been granted in an intestate situation.