Disinheritance—the intentional exclusion of a family member, usually a child or spouse, from receiving part of your estate after your death—is more common than you might think. It is also easier than you might think to disinherit a loved one, with a couple of notable exceptions. However, it is not as simple as omitting someone’s name from your estate plan.
Depending on their relationship to you and the laws in your state, some people may have legal rights to a portion of your assets (e.g., money, investment accounts, and property) when you die, unless you take specific steps to prevent them from inheriting. Even then, the decision to disinherit someone can lead to disgruntled family members and legal challenges, so the situation must be approached with care, both legally and emotionally.
Disinheritance Laws: Who You Can (and Cannot) Disinherit
You are generally—but not entirely—free to dispose of your assets at your death however you see fit. This ability to include, as well as exclude, people from your estate plan is known as testamentary freedom.
How to Disinherit Someone
Disinheriting someone requires a clear and unambiguous statement in your estate planning documents. Leaving their name out of your plan is not enough. The court could assume that an omitted name is unintentional and award them a share of your money and property, especially if the person is a close family member. To disinherit someone, you should take the following steps:
- Make your intent explicit. Your estate plan should explicitly state that you do not want a certain individual to receive any portion of your money and property. Use straightforward language. Identify the individual clearly. Use the full legal name of the person you wish to disinherit to avoid any confusion with individuals who may have similar names. For further clarity, you can include their relationship to you, their date of birth, and other distinguishing information, such as their city and state of residence. Keep it brief and neutral. Your estate plan is not the place to air grievances or explain your decision in detail. Most people do not realize that wills are public documents and the things they write in them live on in public view and might cause reputational harm. Even if you are trying to explain a disinheritance, making potentially false, damaging claims can expose your estate to legal risk. Keep your language brief and neutral.
- Explain your thinking in an (optional) letter. If you feel compelled to explain your decision and have not already discussed it with the person you are disinheriting, consider writing a separate letter to them. Store the letter privately and instruct that it be shared only after your passing. This is not a legally binding document and should not be attached to your will or trust. By explaining your reasons for the disinheritance, you may help reduce the chances of a family member challenging your will or trust later on—especially claims that you lacked capacity or were influenced by someone else. A clear statement of intent can go a long way toward preventing misunderstandings and minimizing the risk of litigation.
Alternatives to Disinheritance
There is anecdotal evidence that more parents are not leaving their children inheritances to avoid entitlement and promote self-reliance. Some celebrities have publicly vowed to leave their kids little or nothing, and this trend may be trickling down to ordinary Americans.
Parents may want to spend the money on themselves in retirement, or they may be forced to spend it on healthcare and long-term care. They may also decide that their money is better spent on charitable giving, that it should go to someone who needs it more, or that they will embrace “gifting while living” and pass their hard-earned assets to their children now.
However, leaving an inheritance does not have to be all or nothing. If you are unsure about fully disinheriting someone or want to avoid potential conflict or legal challenges, consider these alternatives:
- Leave a smaller or symbolic inheritance. Instead of cutting someone out entirely, leave them a small token gift, such as a few hundred dollars or a family heirloom, to signal that you thought of them and did not accidentally omit them.
- Use a no-contest clause. A no-contest clause provides that anyone who challenges your will or trust loses their inheritance. You can combine this type of clause with a modest gift to discourage lawsuits since the beneficiary stands to lose something if they challenge your will or trust. Keep in mind that no-content clauses may not be recognized or enforceable under your state law.
- Create a trust. A spendthrift trust can help protect a financially irresponsible beneficiary from reckless spending and shield the inheritance from creditors. Similarly, a conditional or incentive trust allows you to set goals or milestones that must be met before funds are distributed. These tools offer a thoughtful way to provide for someone you may be hesitant to give money to outright, while still protecting their long-term well-being and interests.
- Add beneficiaries to accounts. Retirement accounts, life insurance policies, and some types of bank accounts and deeds pass directly to your named beneficiaries (i.e., those other than the disinherited loved one) and bypass the need for a will and public probate process entirely. These distributed assets will only be known to the named beneficiary and the government for tax purposes, which could help keep the distribution private and prevent a will contest.
In addition to seeking a compromise to disinheritance where appropriate, make sure to review and update your estate plan regularly in case you have had a change of heart or circumstances.
Work with an Attorney to Avoid the Personal and Legal Challenges of Disinheritance
Disinheritance can be emotionally fraught and legally tricky. It is a deeply personal decision that should be approached with careful consideration and sound professional advice.
The law respects your right to choose how your assets are distributed. It also requires that those choices are expressed clearly and meet legal requirements. An estate planning attorney can help you draft documents that comply with state laws and anticipate challenges, include provisions to strengthen your plan, and explore options such as trusts that are harder to challenge and more private than wills.
For a plan that reflects your convictions, schedule a meeting with us.
Posted in: Estate Planning, Gifting, Trust, Trustees