Creating an estate plan that disinherits a family member

On Behalf of | Feb 11, 2024 | Estate Planning |

For many people, the main objective during estate planning is to ensure that specific people receive certain assets from their estates. They may want their children to share ownership of the family vacation home or a family friend to inherit their classic car. But, sometimes, people create or revise their estate plans to achieve the exact opposite. They intentionally want to prevent someone who expects to inherit from their estate from receiving significant property or specific resources.

The choice to disinherit someone is often a difficult decision that follows years of difficult encounters or declining connection between the parties. If someone has made the decision to disinherit a member of their family in their estate plan, they need to proceed carefully to achieve that goal.

Disinheritance is not always an option

There are some scenarios in which the person who wants to disinherit someone might be unable to do so. Someone who does not believe in divorce might want to punish an abusive, negligent or unfaithful spouse by denying them assets from their estate.

Unfortunately, the probate courts are unlikely to uphold terms fully disinheriting a spouse. The spousal right of inheritance is so strong that a disinherited spouse could challenge an estate plan and convince the courts to award them a specific portion of the estate contrary to someone’s written instructions. However, most other family members, including children and grandchildren, could lose their inheritance based on the wishes of the testator.

Disinheritance should be explicit

Someone seeking to eliminate or substantially reduce the inheritance one person receives must proceed with caution. While someone’s first impulse might simply be to strike someone’s name from their testamentary documents, that may not achieve their goal.

The disinherited family member might later try to claim that their omission from the documents was an oversight. They could potentially contest someone’s will in probate court by alleging that the testator left them out by accident.

Therefore, people typically need to specifically mention the decision to disinherit someone in their will. In fact, they may want to go a step further and leave single dollar or a small piece of personal property with negligible financial value to the disinherited party. Doing so makes it much harder for a disinherited family member to take legal action against someone’s estate. Additionally, openly communicating about those changes with family members can decrease the likelihood that others might support someone challenging their disinheritance after the testator dies.

Knowing the general rules that apply when disinheriting someone can make it easier for an adult to craft a functional and effective estate plan accordingly.