What does it mean to disinherit someone?
When you disinherit someone, you intentionally exclude them from getting any of your assets when you pass. Often someone is disinherited when an original will or trust is created, but you also can disinherit an existing beneficiary by creating a new will, codicil to your existing will, trust amendment, or by restating your trust. The most common example of disinheritance is when a parent deliberately leaves a child out of a will or trust because they do not want them to receive any of their estate assets upon their death.
Is it legal to disinherit someone?
Yes, it is perfectly legal to disinherit anyone in the state of California.
In California, children have no natural right to inherit under the law. In other words, it is legal for a parent to disinherit their child for almost any reason or no reason at all. While minor children may still be legally entitled to financial support from the estate, this is not the same thing as a right to inherit.
However, while still legal, it’s a bit more complicated if you want to disinherit your spouse. As a community property state, California law entitles your spouse to 50% of the couple’s community property upon death. For this reason, if you want to completely disinherit your spouse, you will have to use a prenuptial or postnuptial agreement.
How do I disinherit someone?
To disinherit anyone other than your spouse, you should expressly state in your will or trust that you intend to disinherit them. California law presumes that you want to include your children in your will. Simply leaving a biological child out of the will may not ensure their disinheritance, as the child might be able to convince the court they were unintentionally forgotten and grant them a share of the estate. If you want to guarantee that a child is disinherited, you should include a disinheritance clause that clearly states you have intentionally chosen not to provide for them.
Under California law, you can’t completely disinherit a spouse without a prenuptial or postnuptial agreement. Because California is a community property state, all assets you acquire during the marriage are owned equally by both spouses. This means that, upon your death, your spouse is entitled to 50% of this community property, and you can’t disinherit them from their one-half of the marital assets simply by writing them out of your will. However, you can distribute your half of the community property and all of your personal assets as you see fit.
The only way to completely disinherit a spouse is through a prenuptial or postnuptial agreement. In this agreement, both spouses would agree to keep their assets separate and waive their rights to each other’s property. This means that there would be no community property: you would have your assets, and your spouse would have their own separate assets. When such an agreement is in place, you can disinherit your spouse entirely.
Can I still get an inheritance if I’ve been disinherited?
Yes, you can still get an inheritance after being disinherited if you can successfully contest the document containing the disinheritance language.
When you have been disinherited under a will or trust, particularly if you were named as a beneficiary in a prior document, you can challenge the will’s validity several reasons, including:
If you can show that the deceased was not of sound mind when they disinherited you, you can contest the will or trust’s validity to get your inheritance.
Undue Influence or Duress
If you were disinherited as a direct result of undue influence or duress on the decedent, you can challenge the will or trust to recover your rightful inheritance.
Undue influence occurs when someone with a close relationship to the person creating a will or trust compels or coerces them to leave property to the influencer instead of the people they really want to inherit their assets. Duress is a sub-category of undue influence that involves the use of force, false imprisonment, threats of violence, or psychological pressure.
Mistake of Fact
If you can show that you were disinherited because the deceased was mistaken about a certain fact, you may be able to invalidate your disinheritance. For example, suppose your loved one disinherited you because they believed that you are an alcoholic, but you can prove you never were. In that case, you may be able to overturn the disinheriting document.
Lack of Authority
In the case of a parent disinheriting a child, parents often attempt to disinherit a child from the portion of the estate that the other parent left as the child’s inheritance. Many estate plans provide that once the first parent passes away, the allocation of their share of the estate cannot be changed. It becomes “irrevocable.” If you are a child who has been disinherited under these circumstances, you can contest your disinheritance and should be able to recover at least what the first parent intended for you.
Do I need a probate lawyer to contest a will?
While California law does not mandate the use of a probate lawyer to contest a will, it is challenging to succeed on your own. Having an experienced probate litigation attorney on your side will significantly improve your likelihood of receiving your rightful inheritance.
If you’ve been disinherited, you should contact a probate litigation attorney as soon as you find out. A skilled probate litigation lawyer can review the relevant documents and circumstances of your situation and provide legal advice on the best course of action.
Do I need a probate lawyer near me?
If you have a probate dispute, hiring the best attorney familiar with the local probate court where your case is going to be heard and decided often will get you the best result. Hiring someone local can be logistically favorable, but the reality is that familiarity with the court and its judges, processes and rules will help move your case along more efficiently and cost-effectively, getting you a better result sooner and likely for less legal spend.
Have questions? We’re happy to discuss.
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About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, 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.