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 (all of your property at death) 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 your spouse and children. Or if there is no spouse and no children, the estate goes to the next closest relatives—for example, to the parents or siblings. State laws provide for quite a long list of possible heirs—from spouses all the way down to distant cousins. However, distant heirs rarely receive any part of an estate because there are usually closer heirs living who will receive the estate first.
Most Heirs (Except Spouses and Some Children) Do Not Have a Right to Your Estate
Despite the fact that your heirs would receive your property if you died without a will, most of your heirs actually have no right to any of your estate. In other words, you can use a 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 your property under your state's intestate succession laws.
There are two possible (and rather common) exceptions: your spouse and your children. All states have laws that protect a spouse from being completely disinherited. In just a few states, your children might have a right to some of your property. So can you exclude a child from your will? Usually yes, but it depends on your state's specific laws. For example, Louisiana doesn't allow you to completely disinherit your children if they are under 24 years old or permanently disabled. However, Louisiana is the exception rather than the rule.
Apart from these 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 make a will that leaves that person nothing.
How to Disinherit a Child or Heir
Because most heirs don't have any right to your estate, you can disinherit them simply by making a will and not mentioning them. This is the most simple and obvious way to disinherit extended relatives. However, if you are disinheriting a child (which you can do in most states), you'll want to make sure that you do so explicitly. This is because some states have laws that protect children from being "omitted"—that is, accidentally forgotten. In nearly all states, a disinherited child has no legal rights to your property.
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.
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 an 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 conflict. 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 compromising the effectiveness of your will.
If you really want to leave explanatory language in your will, make sure to get help from a lawyer.
If a Disinherited Child or Heir Challenges the Will
While unhappy family members who feel they should have inherited more can challenge the will in probate court, they will not be successful, so long as (1) the will is valid, and (2) they are not protected by state laws (as spouses and, in rare cases, children are). However, will challenges can draw out the probate process.
Some wills contain a no-contest clause, which states that anyone who contests the will won't receive any inheritance at all. These clauses are valid in some states, but not all. If you anticipate conflict over your will, it's best to consult an estate planning attorney.
An Attorney Can Help
If you have clear wishes and a relatively simple estate, you might be able to use a good self-help product like WillMaker to write your will, even if you want to disinherit an heir. However, if you want to disinherit your spouse or your children, consider getting help from an experienced estate planning attorney. A good lawyer can help you understand the laws of your state and how they affect your wishes, as well as how to craft the language of your will to address your unique circumstances.
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?