What is Disinheritance?
Disinheritance means to not leave any inheritance to an heir in a Last Will and Testament. The act of disinheriting someone cuts off their entitlement to any share of a testator’s estate.
For instance, using a clause that states the heir will not receive any inheritance, such as, "I am choosing to leave no assets to my daughter, Ashley," confirms that a child has been disinherited from a Will.
By not mentioning an heir in a Will at all, there are several factors that determine whether a loved one purposely omitted them, or whether it was accidental.
Accidental Disinheritance
There have been cases where individuals have accidentally disinherited an heir by failing to update their Last Will after a major life event, such as not adding a child to a Will after they are born. For this reason, it is important to maintain an updated Will as to not accidentally disinherit someone without meaning to.
Update your Last Will after the following life events:
- Marriage
- Divorce
- Birth of a child
- Adoption
- Death of a spouse
- Death of executor or beneficiary
- Significant increase/decrease in assets
- Starting a business
- Change of residence
- Health changes (illness, surgery, etc.)
While some small changes can be made to your existing Will using a Codicil, any major life changes usually require a new Will.
Who You Can and Cannot Disinherit
Can you disinherit a spouse?
As major beneficiaries in a Last Will, spouses cannot be legally disinherited unless they agreed to it in a Prenuptial Agreement (prenup) before you got married.
A Prenuptial Agreement allows spouses to designate separate property from marital property so that, in the event of separation or death, they can retain their separate property. In the case of disinheritance, the spouse would not receive the property that was designated as separate. The Prenuptial Agreement must be created in good faith, and with all assets listed in order to be valid.
If you choose to disinherit a spouse without having created a prenup, state laws may override your wishes and give your spouse a portion of your estate.
For example:
If you specify that your entire inheritance go to your child and not your spouse, the Will may be challenged in court, and find that your spouse is entitled to a certain share of your estate according to specific state laws.
If you do wish to try and limit your spouse from receiving portions of your estate, make your disinheritance intentions as clear as possible in your Will, as this may or may not factor into the court’s decision.
Can you disinherit children?
You can disinherit adult children in your Last Will, but minor children are typically protected by law.
In Louisiana, you may disinherit any children who are over 23 years of age and who are physically and mentally able to care for themselves.
Can you disinherit a parent?
Children may disinherit parents who outlive them. Parents are not legally entitled to any of their children’s estate.
Can you disinherit extended relatives?
If you choose to leave out any names from your Last Will who are not legal beneficiaries, they will not receive property. You are not obligated to give extended relatives any of your inheritance.
Reasons for Disinheritance
It is up to the individual who is creating the Last Will to decide if they want to cut an individual off from receiving an inheritance. Some have their reasons, such as lack of relationship or they believe the child can support themselves financially. Others view disinheritance as a tool for revenge or manipulation.
Common Reasons for Disinheritance:
- Lack of relationship or contact with heir
- Testator believes the heir has enough financial income and there is no need for inheritance
- The heir has not supported or cared for them in the past
- Parent has already provided past financial support (to child)
- Testator does not believe that the heir is financially responsible
- Testator does not support the heir’s lifestyle or behavior
- Testator did not update their Will
Some parents simply do not support the path their children are on and refuse to give them inheritance if they do not agree with their child’s lifestyle choices, or they feel like their child is not financially responsible.
Alternatives to disinheritance may be to open a trust in a child’s name and to control distributions to the heir in that way.
Consequences of Disinheritance
Without a doubt, disinherited individuals may feel hurt by the decision for a parent or relative to leave them with no inheritance. It not only affects the person who was disinherited, but also those around them, such as siblings who were included in the Will.
Disinheritance has been known to cause family tensions and sibling conflicts that sometimes result in loved ones not speaking to each other because of hurt feelings.
Before making any choices to intentionally disinherit a relative, consider the consequences of your decision. While you are free to divide your assets as you wish, the effects of your death mixed with unanswered questions may only add to your loved one’s pain.
If you are set on disinheriting a relative, you may wish to include a reason in the Will. Just understand that these words will be your last words to this person.
A Testator's Intentions
In cases of disinheritance, it is largely situational. Like mentioned above, accidental disinheritance is determined by the person’s intentions. By failing to update a Will after the birth of a child, it is more likely the parent did not mean to leave this child out, especially when all other children are named. Conversely, not mentioning a child in a recent Will is a better indication that they purposely disinherited them.
It’s important to make a Last Will as clear as possible because this document is a personal statement that comes into effect after death. Meaning that once you pass away, there is no option to ask you to clarify your estate plans.
For this reason, declining to mention an heir entirely can leave a Will open to dispute in some instances.
Grounds for Contesting a Will
When an individual contests a Last Will, they challenge the validity of it.
A Will may be open to contest if:
- Disinheritance appears to have been accidental
- The Will wasn’t updated after marriage, death, or the birth of a child
- A testator left out a spouse who is entitled to a share of their assets
- The Will wasn’t executed properly or signed according to state laws (e.g. no witnesses to attest to proper execution)
- The testator wasn’t of sound mind when signing
- The testator was unduly influenced by a beneficiary or other party
- The Will was believed to be executed under fraudulent circumstances
To contest a Will, there should be evidence that one of the above has occurred. This can include the Last Will itself, showing that a testator has failed to bequeath assets to a spouse in accordance with the law, or a doctor’s testimony of the testator’s state of mind during the time the Will was signed.
In any event, invalidating a Will can be an exhaustive, and often expensive, endeavor.
If a beneficiary believes the Will was not executed properly or it does not reflect the testator’s wishes, they can proceed to file for contest in a timely manner (if you wait too long, the Will may no longer be open to dispute), before or during the probate process, and with the help of a probate/estate lawyer.
Deciding to Cut Someone Out of Your Will
Disinheritance is more common than one might assume. If you are strongly considering disinheriting someone from your Last Will, it is recommended you think through this decision carefully. Not only is this a large statement to whoever you are not including, but it may cause that person pain and hardship after your death. If you decide to proceed, be as specific as possible in your Will to avoid confusion over your intended wishes.
