Disinheritance can be a tricky thing. It is not easy to disinherit someone, and they do have the ability to fight back against your disinheritance, if your reasons are too shaky. Solid grounds for disinheritance and the professional expertise of a lawyer will be needed to carry out a disinheritance against someone with any interest in your estate.
However, while it can be difficult, it is certainly worth it whenever it may be relevant. Perhaps you have made too many lifetime gifts to someone and seen them squander it all. Or perhaps you have been estranged with a close relative, with no love lost, and no interest in bequeathing unto them the results of your hard work and fortune. Perhaps they wronged you horribly. Perhaps there is a pragmatic reason. Whatever your personal thoughts on the matter, knowing when and how to disinherit someone is important, as it is not done lightly.
Can You Disinherit Someone?
First of all, yes. Contrary to what some might have you believe, it is possible to block nearly anyone from receiving an inheritance, as long as you go through the proper steps and prepare the necessary paperwork.
If you die leaving behind no instructions whatsoever, it is very difficult to convince the courts to keep a biological heir from claiming their portion of the estate. But while the estate holder lives, they can specifically disinherit individuals who might stand to inherit from them.
The process of disinheriting someone is simple. You can disinherit someone through a will, through a family trust, through beneficiary designations, and through other estate planning documents. However, the difficult part is making sure it sticks. A disinherited adult or child has the right to contest their disinheritance, and without the right preparation, things can get messy.
There are also exceptions. It is very, very difficult to disinherit a spouse without good cause. You cannot just one day decide that the person who stood by you for the last thirty years, or the last thirty months, stands to receive nothing whatsoever – but you do have some options, depending on where you live.
Some states provide greater inheritance protections to spouses and children than others. In some cases, it depends on how long you were married. In Georgia, the state with the least inheritance protection for spouses, disinherited spouses are still entitled to a monetary allowance for the year after the spouse’s death, similar to temporary alimony.
In community property states, all property obtained in marriage is de facto co-owned by your surviving spouse, which can greatly complicate any potential disinheritance. In states without the Uniform Probate Code, spouses are entitled to a portion of the probate proceeds, meaning people who want to completely disinherit an estranged spouse must leave nothing to probate.
Disinheriting individuals other than your spouse is generally simpler, but you can still count on some pushback. Legal expertise is needed to protect your decision.
Why Would You Disinherit Someone?
The reasons why you might disinherit someone range from wanting to give other, less fortunate people in your life a greater share of the estate, to simply not liking and never liking a specific close relative. Perhaps you got into a huge row and never quite reconciled. Perhaps they did something unforgivable.
Whatever the reason, it must be defensible. If a person otherwise deserved to inherit – by being your sibling, your child, or another close loved one – you may need a specific reason to consider completely leaving them out of the will or bequeathing nothing onto them via the trust or rest of the estate. The most common grounds for disinheritance include:
- Having previously inherited. If you favored one child over another for any given reason, and gave them a better head start, but came to regret or find your actions unfair, you may want to consider leaving your full inheritance behind for your less fortunate child. The idea isn’t necessarily to disinherit the other child out of spite, but to provide a much greater inheritance to the child you may not have had the best relationship with. It helps to discuss such an idea with the disinherited child before going through with it, before they try and claim their portion of the inheritance through litigation. They may accept the idea with grace.
- Divorce is another common reason. While it is difficult to disinherit a spouse you haven’t formally separated from, you can easily disinherit an ex-spouse. Most ex-spouses tend to remove each other from their wills and trusts after a divorce. If you died before getting the chance to do so, it is possible for your attorney to argue that you intended to do so, especially if the divorce was quite recent.
- Estrangement or lack of relationship. There are plenty of cases of people who are biologically related yet have barely ever interacted with each other. We aren’t just talking about second cousins – you might never have met your half-sister, or your biological mother, or your grandparents. If you are close kin to someone who does not wish to leave you an inheritance because of a lack of relationship, they are within their rights to disinherit you. You can, however, argue that your lack of relationship may be due to unjust interference from someone else. It would have to be a fairly mutual and clear estrangement to count as a solid ground for disinheritance.
- Some people may consider disinheriting someone because they do not approve of their lifestyle. It might be that they do not approve of their child’s choice in partner, or their choice to have/not to have children, or perhaps other lifestyle choices, such as a history of substance use. Disinheriting someone for their lifestyle or their religious beliefs can be done, but they can just as well try to fight for their inheritance after you pass away.
Disinherited kin can appeal the decision to be disinherited within a strict timeline after the decedent has died. They must usually go through the probate process to appeal their disinheritance within the will.
Anyone who wishes to contest a will and their own disinheritance might want the services of a probate litigation attorney – it is their job to go through the paperwork involved, establish an argument for their client, and defend their client’s inheritance. In these cases, the estate must defend the decedent’s choice, while the disinherited child or spouse is free to argue undue influence, a lack of mental capacity or even duress.
If you plan to disinherit someone, it would be well worth your time to consult a litigation professional to discuss your risk of estate litigation after death.