You can use your will to decide exactly who will inherit your property at your death. For the most part, you can also choose to leave nothing at all 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.
Additionally, every state protects children who could have been accidentally disinherited, so if you do want to disinherit your child, make sure your estate plan (for example, your will or living trust) 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 (see below) use a concept known as "elective share" to ensure that a surviving spouse isn't entirely disinherited. In these states, you can't leave your husband or wife out of your will completely. A surviving spouse who doesn't receive anything from a will can elect to take between one-third and one-half of the deceased spouse's estate—the exact fraction depends on the state. This portion of the property is called the spouse's elective share. Some states use a sliding scale approach and look at the number of years a couple was married to determine how large a portion of the estate a surviving spouse can claim. In other words, the longer the marriage, the more property the surviving spouse gets.
Community Property Vs. Common Law States
Most community property states don’t have these spousal protection laws, because they provide for spouses during the course of the marriage. For example, in a community property state, income earned by one spouse during the marriage is automatically 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 what state you live in, before you contemplate disinheriting your spouse, make sure you understand who owns what in your marriage.
What Property Is Subject to the Elective Share?
Even among common law states, the exact approach can differ greatly. In some states, only the property that's part of the "probate estate"—that is, the property that's subject to probate when the first spouse dies—is considered when determining the surviving spouse's elective share. That means that property that's not subject to probate, such as property held in a living trust or life insurance proceeds that pass directly to a named beneficiary, won't be considered. But other states include nonprobate assets as well.
How to Disinherit a Spouse
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 24, as well as some children with disabilities, have the right to one-quarter to one-half of a parent’s estate. And in Florida, children have a right to inherit a parent’s residence. (La. Civ. Code Art. 1493, 1494, 1495 (2024); Fla. Stat. § 732.401 (2024).)
If you don’t provide for these children in your estate plan to the extent that they're entitled, they can petition the court to get what the law says they should have. But for the most part, a parent can leave a child out of a will.
Reasons to Disinherit a Child
Those who choose to disinherit a child might not always be driven by negative relationships. While being estranged from your child might certainly be a reason to disinherit them, you might also do so in other situations such as:
- your child (or one of your children) is well-off and doesn't need additional support
- you already gave sufficient financial support to your child during your lifetime
- you want to provide for a disabled child and leave nothing to your healthy children who are able to support themselves, or
- you believe that your children should pull themselves up by the bootstraps.
For example, if you have three children, and financially supported one of them significantly more than the other two, you might decide to leave that one child little or nothing in your will.
State Your Intention to Disinherit a Child
If you do 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 left off 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 omit the child who you want to disinherit. Instead, state your intention clearly in your will. If you don’t, those omitted 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 to survivors—completely separate from the will—that states 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 challenges of your specific situation.
What Are Your Options If You Were Disinherited?
Or you might be wondering about disinheritance from the flip side of the coin. If you were the one disinherited, you might have a few options:
- If you are a disinherited spouse, your state's laws might protect you (see above).
- If you are a disinherited child, you're likely out of luck, except in a few narrow situations (see above), or if you can make the case that you were accidentally left off the will.
You might also be able to challenge a will on a few other legal grounds, such as that the will maker was not of sound mind. But it's very hard to successfully contest a will. Also beware that if the will contains a no-contest clause, you might risk losing any inheritance left to you if you do challenge the will.
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. See also Trusts & Estates: Finding a Good Lawyer.
Questions for Your Lawyer
Below are examples of the types of questions you could ask your lawyer:
- Is it okay to lie to my son about my plan to disinherit him?
- I want to disinherit a child I had with someone other than my wife. I don't want to mention that child in my will, so how do I keep that child from claiming a portion of my estate?
- Should I leave my daughter just one dollar to illustrate how little I want her to have?
As you can see from the above example questions, it’s important to give your lawyer details about your plans to disinherit a family member. Your lawyer can explain why you can or can't do something and can give you alternative methods to achieve your goals.