Every experienced estate planning attorney has been asked, “How do I disinherit my ______ (fill in the blank here) from my will?” We have all heard the myriad of reasons clients want to do so. If this is something you’re thinking about, the following article is for you. It’s long, so I’ve broken it into two parts for this week and next. I found this at Kiplinger online recently, 4/12/25, and it was written by Donna LeValley.
“Whether you’re navigating a second marriage, dealing with an estranged relative or leaving your assets to charity, there are reasons to disinherit someone. Here’s how.
What if you no longer want to include someone in your will? Well, how you choose to divide your estate is a personal decision and entirely up to you. There may come a time when you need to update and change the beneficiaries in your will because you no longer want to leave them a bequest or have them inherit anything from your estate.
To show your intention to disinherit someone, there has to be actual language in the written will stating that this person is disinherited. No reasons have to be given, but the language that is used has to be clear and easy enough to understand to prove that this is in fact your intention.
Those considering how to disinherit can use either a disinheritance clause or leave a bequest with a no contest clause to cutoff any challenges from anyone dissatisfied with what was left to them.
What happens if you die without a will? If you die without a valid will, you die intestate, and your state’s intestacy laws determine how your assets are distributed, typically to close relatives. Intestate succession laws would then dictate the order in which your assets are distributed to your heirs. The order of intestate succession begins with the decedent’s immediate family and extends out to distant relatives. Close relatives like spouses, children, grandchildren, parents, and siblings are typically prioritized.
· Spouse, children and grandchildren
· Parents and siblings
· Nieces, nephews
· Grandparents
· Aunts, uncles
· Cousins
Do you have to disinherit all possible heirs? Fortunately, the law doesn’t require you to name each and every blood heir that could possibly inherit under intestate succession. Laura Cowan, estate planning attorney and founder of 2-Hour Lifestyle Lawyer, says you need to be clear and plan for contingencies or what she calls “the exploding Thanksgiving turkey.” This is a hypothetical example of what would happen to your estate if all of your heirs died simultaneously.
She said you can make sure your money goes where you want it to by naming successors to stand in the place of your heirs, such as allowing your grandchildren to inherit in the place of your children if they should predecease you. This is called a per stirpes designation.
Per Stirpes, a Latin phrase meaning, “per issue,” is a legal term that directs that each branch of the family inherits an equal share of the estate in accordance with the wishes of the testator (the person who created the will). As such, the beneficiary’s share of the estate will be passed on to the beneficiary’s heirs or descendants, even if the beneficiary should die before the testator.
After exhausting your list of intended heirs and beneficiaries, you can name a charity or another entity to inherit your assets. This demonstrates your intentions and shows that you contemplated what would happen if your heirs/beneficiaries were deceased and where you want your assets to go.
People you can’t disinherit:
There are some people that you can’t disinherit. You have a legal obligation to financially support your minor children and can’t disinherit them. As long as your estate has assets, state law would dictate that those assets be used to pay for the care and maintenance of any minor children.
And without a prenuptial or postnuptial agreement, you can’t disinherit a spouse. Spouses are entitled to their “elective share” regardless of the deceased spouse’s wishes or what was in their will. If a spouse is overlooked or explicitly excluded, they can elect to receive their statutory percentage, typically 30% to 50% of the estate of the deceased spouse. The size of an elective share varies because it is based on state law.
How to disinherit someone:
The type of relationship you have with the person you intend to disinherit will play a large part in determining which is the best course of action. These are four tools you can use to effectively make sure an heir does not inherit or challenge a nominal bequest:
· Use beneficiary designations to transfer property outside of probate. You name a beneficiary or co-owner of your financial accounts and life insurance policies and that asset will avoid probate. The exception is ERISA-protected retirement accounts. These employee-sponsored retirement and health care accounts, such as 401(k)s, give surviving spouses the right to and inherit all the money in the account even if there are other named beneficiaries. However, you can name another beneficiary to your account if your spouse signs a waiver; a non-spouse beneficiary would be invalid without it. If you are not married, you can name a beneficiary on your 401(k) and that overrides any will.
· Trusts. You could also establish trusts that reside outside your will. By transferring assets into an irrevocable trust, you remove them from your taxable
estate, protect them from creditors and, most importantly, ensure they go to your chosen beneficiaries.
· Other legal documents to disinherit spouses. You can only disinherit your spouse with their consent. You can use prenuptial and postnuptial agreements to “waive” estate rights or use a separate document that does not even address a future divorce.
o Multiple marriages. These types of agreements are useful when there is a second or third marriage between spouses who are each bringing their own property into the marriage. In this instance, these spouses often want to keep their property separate so that it can go to their own family members after they pass away.
· No-contest clause. If an heir with a claim to your estate is left nothing, they have nothing to lose. A no-contest clause states that if someone contests the will, they get nothing. For a no-contest clause to be effective, leaving more than a nominal bequest is the best route.
· Disinheritance clause. This is a provision that explicitly states a person/heir will not receive any portion of your estate upon your death, ensuring they are excluded from inheriting any of your assets. Merely including text that states, “I don’t like my child because they vote the wrong way and therefore they get nothing” is not sufficient. This clause needs to clearly identify who you are disinheriting and include an explicit statement that they will receive nothing from your estate. It’s important to leave no room for ambiguity. The delicate nature of these clauses is why 2-Hour Lifestyle Lawyer’s Cowan suggests you meet with a professional to avoid drafting errors that could render your disinheritance clause insufficient.
· State law controls. Every state has its own laws that govern estate planning and probate procedures. That’s why using a professional in this circumstance is highly advisable. There is too much room for error if you or anyone not trained in a state’s estate law attempts to draft an inheritance clause.”
Next week, I’ll post the rest of the article, which starts with “Six Reasons to Disinherit a Family Member.” Meanwhile, if you need assistance, whether drawing up a will, updating your will, or even changing the beneficiaries, please do not hesitate to call me. I’m happy to discuss it with you, and together, we can ensure your will is exactly what you want it to be. Call me at 513-399-7526 or visit my website, www.davidlefton.com, for more information.
Source: Kiplinger 4/12/25 by Donna LeValley