Trusts and Estates

Using Your Will to Disinherit an Heir

By Betsy Simmons Hannibal, J.D., Golden Gate University School of Law

Talk to a Local Wills And Probate Basics Attorney

With a few important exceptions, you can use your will to disinherit an heir. In fact, for most heirs, you can simply not mention them in your will and they will get nothing. However, you’ll need to take more care if you want to disinherit your spouse or child.

What is an Heir?

An heir is a person who could have a right to your estate if you die without a will. If you die without a will, your estate passes to your relatives according to the “intestate” laws of your state. Intestate laws differ slightly by state, but they generally leave the entire estate to the spouse and children of the person who died without a will. Or if there is no spouse and no children, the estate goes to the next closes relatives—for example, to the parents or siblings. There is quite a long list of possible heirs—from spouse all the way down to distant cousins—however distant heirs rarely receive any of an estate because closer heirs get it first.

Most Heirs Do Not Have a Right to Your Estate

Despite the fact that your heirs will receive your property if you die without a will, most of your heirs have no right to any of your estate--you can use your will to give your property to whomever you choose. The only way your heirs are entitled to anything is if 1) you don’t leave a will and 2) they qualify to get it under the intestate succession laws.

There are two possible exceptions – your spouse and your children. All states have laws that protect a spouse from being completely disinherited. And in just a few states, your children may have a right to some of your property. But other than those exceptions, you can disinherit any of your heirs because they do not have a claim to your estate unless you don’t leave a will.

So the key to disinheriting an heir is to leave a will that leaves that person nothing.

Using Your Will To Disinherit an Heir

Because most heirs do not have any right to your estate, you can disinherit them simply by making a will and not mentioning them. This is the simple and obvious way to disinherit extended relatives. Again, spouses and children are exceptions because state laws protect them from being “omitted”—accidentally forgotten—from a will. So you should disinherit spouses and children explicitly, but everyone else you can just ignore.

That said, you may have a good reason to disinherit other heirs explicitly in your will—for example, if you want everyone to know about your wish to exclude someone from your will. If so, you can state in your will that you leave someone nothing. Similarly, you may have heard that you could leave someone one dollar or some other pittance to indicate disinheritance. Doing that can be effective, but it can also cause headaches for your executor. It’s usually better just to leave nothing.

You can disinherit most heirs in a will you make yourself. However, if you want to disinherit your spouse or your children, get help from an experienced estate planning attorney for advice. A good lawyer can help you understand the laws of your state and how they affect your wishes, and he or she can also craft the language of your will to address your unique circumstances.

Don’t Use Your Will To Explain Why

If you use your will to disinherit heirs—either by not mentioning them or by explicitly excluding them—don’t include a explanation about your choice. A will should contain just the essential legal language to convey your wishes. Anything more than that will complicate your will document and open it up to interpretation, confusion, or even contest. A better way to explain the decisions you made is to leave a separate letter to your survivors. In that letter, you can explain your decisions using as many descriptions as you like, without risking the effectiveness of your will.

If you really want to leave explanatory language in your will, make sure to get help from a lawyer.

An Attorney Can Help

If you have clear wishes and a relatively simple estate, you may be able to use a good self-help product to write your will, even if you want to disinherit an heir. But if you want to disinherit your spouse or your child, check in with an estate planning attorney who can help you understand the laws of your state and who can tailor the language of your will to meet your needs.

Questions for Your Attorney

  • Does it count as “disinheritance” if I leave nothing to my wife in my will, but leave her all of my substantial retirement accounts?
  • If I disinherit one of my close relatives, can they challenge my will after I'm gone?
  • Can I disinherit my child, but leave the bulk of my estate to my child’s child?
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