Trusts and Estates

Leaving Someone Out of Your Will

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You can use your will to decide exactly who will inherit your property at your death, and for the most part, you can choose to leave nothing to family members or friends. However, most states do have rules that protect spouses from complete disinheritance, and a couple of states protect minor children as well.

Also, every state protects children who could have been accidentally disinherited, so if you do want to disinherit your child, make sure your estate plan explicitly says so – otherwise, the child you meant to disinherit could have a right to a slice of your estate.

Disinheriting a Spouse

Most common law states use a concept known as "elective share" to ensure that a surviving spouse isn't entirely disinherited. A surviving spouse who does not receive anything from the deceased spouse’s will can elect to take between one-third and one-half of the estate. Some states use a sliding scale approach and look to the number of years a couple was married to determine how much of the estate a surviving spouse can claim. In other words, the longer the marriage, the more property the surviving spouse gets.

Most community property states don’t have these spousal protection laws, because they provide for spouses during the course of the marriage – for example, by making income earned by one spouse the property of both spouses.

Community property states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Common law states are all other states.

No matter in what state you live, before you contemplate disinheriting your spouse, make sure you understand who owns what in your marriage.

Finally, because property laws and the rights of spouses to inherit can be complicated, if you intend to leave your spouse less than half of your property, get help from an experienced estate planning attorney. A good lawyer can reduce the chance of conflict after your death by crafting an estate plan that will protect your property while ensuring that your spouse’s rights are met.

Disinheriting Children

In most states, your children are not entitled to any of your property -- you can leave them nothing. However, there are a few exceptions. For example, in Louisiana, children under age 24 and some children with disabilities have the right to one-quarter to one-half of a parent’s estate. (Louisiana Civil Code 1493.). And in Florida, children have a right to inherit a parent’s residence. (Florida Statutes 732.401.) If you don’t provide for these children in your estate plan, they can petition the court to get what the law says they should have.

State Your Intention to Disinherit a Child

If you decide to disinherit your children, make it clear. In most states, children who are not specifically mentioned in a will can ask for a portion of their parents’ estates. These laws aim to protect children who are accidentally not included in a will – for example, to provide for a daughter who was not yet born when her father made his will and was therefore not named to receive any property. Because of these laws, it is not enough to simply not mention the child who you want to disinherit. Instead, state your intention clearly in your will. If you don’t, those not-mentioned children will likely be able to get some of your property, and that property will be taken out of the gifts you made to other beneficiaries.

In your will, you don’t have to say why you want to disinherit your child (except perhaps in Louisiana, where you must have a legally acceptable reason to disinherit). Rather, you could just say ”I leave nothing to my son, Robert Johnson" or you could list the names of all of your children, and then include a statement like, “If I do not leave property in this will to any of my children named above, my failure to do so is intentional.”

Some people also find it useful to leave a letter -- separate from a will -- about why they are disinheriting a child. Doing this gives you an opportunity to explain why you want to disinherit, and it also may reduce conflict by clarifying your reasoning. Just be sure not to contradict what you’ve written in your will.

Finally, if you anticipate any conflicts about your estate, it’s best to get help with your estate plan from an experienced attorney. A good lawyer can make sure that your will is crafted to withstand the details of your specific situation.

A Trusts and Estates Lawyer Can Help

Laws about disinheritance can be complicated. If you intend to disinherit a child or a spouse, get help from an experienced estate planning lawyer.

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