The main purpose for executing a will is to decide exactly who will inherit your property at your death. You can leave family and friends out of your will, and there's not much they can do about it. However, some state laws don't allow you to disinherit minor children or surviving spouse.
Disinheriting a Spouse
Many states use a concept known as "elective share" to ensure that a surviving spouse isn't entirely disinherited from a will. Generally, a disinherited spouse can take between one-third and one-half of the estate, regardless of what the will says or doesn't say. 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.
Disinheriting Minor Children
In most states, your adult children are not entitled to any property in your estate unless you specifically name them as heirs in your will. Some states forbid the exclusion of minor children from your will, despite what you say in your will, and will award them part of your estate.
If you die before your spouse or have minor children at the time of your death, state homestead laws may preclude you from leaving a primary residence to someone else in your will. Other states may exempt certain types of property, such as your home, or provide a minimum sum of money from your estate that must go to a surviving spouse and minor children. As a result, intentionally disinheriting your spouse or child may not be wholly effective if your state has one of these laws on their books.
Clearly State Your Intention to Disinherit
If the law in your state permits you to leave a child or spouse out of your will, it may be a good idea to include a few lines in your will that names the individuals you're intentionally leaving out and the reasons why. Since your will can be contested in court after your death by people who are disinherited, including such statements can discredit any argument that you made a mistake and didn't intend to disinherit anyone.
A Trusts and Estates Lawyer Can Help
The law surrounding leaving someone out of your will is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a trusts and estates lawyer.
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