The Definitive Guide to Disinheritance

Disinheritance is quite common. Spouses, children, stepchildren, adopted children, domestic partners, etc. can be disinherited in many states. Not surprisingly, disinheritance often leads to those disinherited contesting the will, trust, codicil or amendment that disinherits them. Whether you’re a disinherited child, a disinherited spouse, an individual seeking to disinherit someone, or someone who is involved in a disinheritance case, here’s a helpful guide.

 

What’s the definition of disinherited? What does disinherit mean?

Disinherited, in regards to wills and family trusts, means to be excluded from receiving assets, money, or distributions from an estate or trust. Per Merriam-Webster:

“To prevent deliberately from inheriting something (as by making a will)”
https://www.merriam-webster.com/dictionary/disinherit

What are the grounds for disinheritance?

The person creating or amending a will or trust (referred to as the settlor, principal, testator, trustor or grantor) has the ability to decide to whom to leave their estate, and what portion of their estate. Similarly, they have the same freedom when deciding to disinherit someone. Generally, in regards to disinheritance, we most frequently see settlors disinheriting a biological child or stepchild. Some of the most typical reasons we see for child disinheritance:

  • No relationship with the child
  • Settlor understands or feels that a well-to-do child doesn’t need more money/assets
  • Settlor has provided support previously or has other support plans for the child
  • Settlor disapproves of the child’s life choices
  • Settlor feels abandoned by a child, especially late in life

Is there a difference between being disinherited and being “left out of a will”?

No, colloquially the phrases can be used interchangeably. Legally, there may be a difference. Generally and colloquially, saying that you’ve been left out of a will or trust means that you simply weren’t identified as someone to whom your loved one left a gift or a bequest. This can apply equally to a family member or non-family member who is not mentioned in a will. In such a case, the non-family member has limited legal recourse if he or she was promised an inheritance or distribution. Conversely, a child or spouse may have rights if they were omitted from the document and it was created before the child was born or before the couple married, this is referred to as a pretermitted child or a pretermitted spouse. Below is an example.

If a child or spouse is left out of a will, the scenario may be quite different. For example, if the decedent had three children, and only two were mentioned in the will, the third child may have intestate succession rights, which may allow them to receive a share of the parent’s estate. For more information about intestacy rights and intestate succession, read this article.

Can I disinherit my spouse?

The short answer is that it depends. In many states a spouse has legal rights to inherit from their spouse, regardless of the deceased spouse’s stated wishes. In California specifically, a spouse cannot be disinherited from his or her share of the couple’s community property, although the spouse can be disinherited from the deceased spouse’ share of that community property and the deceased spouse’s separate property. These rights may too be affected by a prenuptial agreement or postnuptial agreement.

For example, if the deceased spouse includes directives in their will or trust that their spouse is to receive no assets, i.e. spousal disinheritance, the spouse may still have a basis to seek a share of the deceased spouse’s estate, whether as an omitted spouse, under the parties’ prenuptial agreement or postnuptial agreement, or as to their share of the couple’s community property. If the surviving spouse is able to claim a share as an omitted spouse, he/she will receive both spouse’s community property interests and at least one third of the deceased spouse’s separate property interests (50% if the deceased spouse had only one child, and 100% if the deceased spouse had no children)..

(If you are the spouse of a decedent seeking a fair and legal inheritance, and have questions, contact us anytime. The consultation is free.)

Can you disinherit a child?

Yes. In most states, it is legal to disinherit an adult child at the discretion of the Principle creating the will. No legal reason is required to disinherit a child. However, simply “leaving a child” out of a will is not the same as “disinheriting” a child. If a biological child is not mentioned in a will, that child may still have the ability to claim a share of the estate as an omitted or pretermitted child.

(If you are a child seeking a fair inheritance, and have questions, contact us anytime. The consultation is free.)

Can you disinherit a domestic partner or common law spouse?

In “common law” states, a domestic partner or common law spouse may have a right to inherit. In non-common law states, the domestic partner or common law spouse may have no inheritance rights. And in another twist, in some states that recognize common law marriage, unlike a spouse in a legal marriage, a common law spouse can be disinherited where a legal or traditional spouse could not.

In California, simply living together never establishes a common law marriage, although other claims and remedies may be available. However, two people can enter into a Domestic Partnership agreement in California. Registered domestic partnerships offer many of the same legal agreements as a legal marriage, including inheritance. However, a domestic partner can be disinherited and/or omitted from a will or trust, just like a spouse. This often leaves the door open to litigation for the surviving domestic partner.

Can an adopted child be disinherited?

Yes. Just like a biological child, an adopted child can be disinherited. The same requirements apply – i.e. that the settlor clearly state the intention to disinherit the adopted child. Similar to a natural child, an adopted child too may claim an intestate share of a parent’s estate as an omitted child or pretermitted child if the will or trust was created before the child was adopted.

How do I disinherit a child in a will?

First, you have to prepare and execute a will. In that will you need to state your intentions to disinherit the child clearly. You don’t need to state the reasons, only who the child is and that they are being disinherited Then keep the will in a safe place, tell the executor of the will where you keep it, and perhaps provide them a copy for safekeeping. You can create a will yourself, use an online service, or seek the help of an estate planning attorney.

Second, although not necessary, in order to help the other beneficiaries avoid, win or minimize the impact of potential litigation, the settlor should prepare a Letter of Disinheritance stating the reasons why the child is being disinherited. Although difficult, these clearly stated reasons will make the settlor’s intentions clear, limiting the disinherited child’s ability to seek inheritance through litigation after the settlor’s death.

Third, if the Principle is using the services of an estate planning attorney, they should make it clear to the estate planning attorney that the child is being disinherited and why. The attorney acts as a legal witness and usually documents the disinheritance and the reasons for it, all of which evidence can be very persuasive should litigation arise after the settlor’s death.

Lastly, if an individual suspects that probate litigation is likely to occur after their death, especially in estates with significant assets, then the individual might want to consider adding an additional layer of protection to their planning in the form of obtaining an expert evaluation who can verify the settlor’s capacity, lack of undue influence, and the reasons why the disinheritance occurred. A contemporaneous written evaluation blessing the will or trust can be a critically helpful in protecting your efforts to disinherit from later attack.

Can you disinherit someone if there’s no will?

No. Some testamentary document, either a will or trust, clearly stating your intentions, is required to disinherit a child, spouse, etc.. If there is no will or trust, then the laws of intestate succession will control who inherits what from your estate.

Does California have a disinheritance clause?

California does not have a “disinheritance clause.” To the contrary, California’s estate laws, codified in the California Probate Code, dictate that intestate estates will be distributed to a decedent’s spouse and children, or if none, then to their family. No one is specifically disinherited under California code.

What is a disinheritance letter?

Generally, a disinheritance letter is a communication prepared to demonstrate to a child, spouse, etc. the reasons why the settlor has disinherited them. The disinheritance letter can be an important tool because it provides insight into the settlor’s intentions – i.e. the reasons why a person was disinherited.

Can a disinherited child contest a will?

Yes. A disinherited child has the legal right to contest a will or trust, especially if they feel the decedent lacked the mental capacity to make sound financial decisions, and/or if the decedent was pressured by somebody to disinherit the child, via undue influence or duress. We routinely represent children who were disinherited by a parent, due to undue influence or duress applied by a step-parent, caregiver, or other abusive family member or interloper. Historically, we have been able to recover substantial inheritances in these cases.

Can a disinherited spouse contest a will?

Yes. A disinherited spouse has legal claims to challenge their disinheritance.

I’ve been disinherited, when should I contact a probate litigation attorney?

The moment you suspect you’ve been disinherited, you should contact a probate litigation attorney near you. Evidence is critical to proving your case, and if you delay critical evidence may be lost. Take advantage of a free consultation and protect yourself and your inheritance. If you have questions, call RMO Lawyers anytime. The consultation is always free: (424) 320-9444

Do I need a probate litigation lawyer near me?

We recommend finding an experienced probate litigation attorney familiar with the county probate court in the county where the decedent lived. For example, if the decedent lives in Los Angeles, we recommend working with a probate litigation lawyer in Los Angeles. A Los Angeles probate litigation lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney. At RMO, we help people like you address issues like these every day.

Have questions?
Email us or call (424) 320-9444

 

Read more
The Most Common Grounds for Disinheritance
How to Disinherit a Spouse: The Truth

The Disinherited Child’s Guide to Getting an Inheritance
The Guide to Family Trust Embezzlement and Stealing

How to Contest a Trust From Home

 

About RMO, LLP

RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com