From time to time when I meet with an individual or couple about their estate planning, they want to disinherit a spouse or child. This is often a difficult choice and is being made for a variety of emotional and/or psychological reasons. It may be a second marriage. It may be a result of the choices the person is making in his or her life. It may be a result of a child distancing himself or herself from the family. It may be that the person has already been given a substantial amount. Strangely enough, when preparing the will or trust with the appropriate language, the parents often recoil from the provision stating the child is being disinherited. They don’t like the word. They feel it sounds too mean-spirited. They want to soften it up a little bit so that it doesn’t feel quite so harsh.
If you die without a will, state law will determine who inherits your assets. In your will or trust, you can decide to alter what state law provides. When you exclude someone who would otherwise inherit, this is referred to as disinheritance. Sometimes, disinheritance is intentional and sometimes it is a collateral result of other circumstances. Any example of intentional disinheritance would be: “I leave nothing to my son, Bob.” An example of a collateral result would be a situation where you leave Bob the farm and Jane the bank account. If the only thing in the estate when you die is a bank account, Bob has effectively been disinherited.
The problem comes when a person wants to disinherit someone intentionally, but they don’t want to specifically say so. Unfortunately, in many states, the failure to specifically state your intention in the will or trust could result in that person receiving the share they would have received if you did not have a will or trust. Additionally, even if it is clear that you intend to disinherit your spouse, most states will provide that the spouse can make a claim against the estate anyway for what is known as the spousal elective share. With a spouse, the clear statement in the will or trust must be coupled with a pre-nuptial or post-nuptial agreement.
If after thought and consultation you still wish to disinherit a natural heir, you should either in the will, in a separate document, or on video, detail the reasons for the disinheritance. If the disinherited person later contests the will or trust, this will be evidence to support your intent.