How a Disinheritance Clause in a Will Works

Many times, a will focuses on the parties receiving property. But, it can also exclude individuals, as well. A disinheritance clause is a provision within a will that explicitly states that a specific individual will not receive any portion of the estate upon the testator’s death. This clause is used when someone wishes to prevent a family member or another potential heir from inheriting assets. It can help avoid ambiguity and potential disputes during the probate process. If you’re considering adding a disinheritance clause to your will, it is important to understand the legal considerations involved.

Consider working with a financial advisor to ask about a disinheritance clause and address your estate planning needs.

What Is a Disinheritance Clause and How Does It Work?

A disinheritance clause is a legal statement within a will that intentionally excludes a person–typically a family member–from receiving any inheritance from the estate. This clause can be added when the testator (the person creating the will) wishes to ensure that a particular individual does not inherit any assets or property. A disinheritance clause must clearly identify the person being disinherited and explicitly state that they are to receive nothing from the estate.

Without a disinheritance clause, state laws may dictate how the estate is distributed, and state laws often prioritize immediate family members, such as the spouse and any children. For example, in a case where there is no disinheritance clause in the will, an estranged child or spouse could potentially claim a portion of the estate. By including a disinheritance clause, the testator can avoid unwanted disputes or legal challenges from individuals who might otherwise be entitled to an inheritance under default state laws.

Laws and Legal Considerations Surrounding Disinheritance Clauses

While most states allow individuals to disinherit certain family members, there are legal protections in place that prevent the disinheritance of certain individuals, such as spouses. In many jurisdictions, a surviving spouse is entitled to a portion of the estate, known as an elective share. This means the spouse cannot be disinherited unless specific conditions are met.

Children, on the other hand, can generally be disinherited in most states, though the disinheritance clause must be explicit. Simply omitting a child from the will is not enough. You must explicitly state that they are to receive no inheritance. But, if a testator disinherits someone for discriminatory reasons, such as race, religion or gender, the disinheritance clause could be challenged and deemed invalid.

To avoid any potential issues, it is a good idea to work with an estate planning attorney who understands state laws regarding wills and disinheritance.

Why You Might Want to Add a Disinheritance Clause to a Will

There are several reasons why a testator might want to include a disinheritance clause in their will. Here are five to consider:

Estranged relationships: One of the most common reasons for disinheritance is estrangement. If the testator has had little to no contact with a family member for an extended period, they may decide that this person should not receive any portion of the estate.
Concerns about mismanagement of funds: Some testators may feel that certain individuals are not responsible enough to manage an inheritance, particularly if they have a history of financial mismanagement, gambling or substance abuse.
Protecting other beneficiaries: A disinheritance clause may be added to ensure that other beneficiaries, such as a spouse or other children, receive a more significant portion of the estate. In some cases, the testator may wish to leave more to those who have been more involved in their life or provided care.
Previous financial support: If the disinherited individual has already received significant financial support from the testator during their lifetime, the testator may feel they have already been adequately provided for and wish to leave the remaining estate to others.
Legal disputes or personal conflicts: Personal conflicts or legal disputes with a family member may prompt the testator to disinherit them. In such cases, a disinheritance clause is a way to prevent the individual from benefiting from the estate.

How to Add a Disinheritance Clause to a Will

Adding a disinheritance clause to a will requires careful wording and legal consideration. Here are five general steps to add a disinheritance clause to your will.

Clearly identify the individual: Be sure to name the person you wish to disinherit explicitly in your will. To avoid confusion, include any necessary identifying details, such as their full name and relationship to you. This prevents claims that they were accidentally left out of the will.
State the disinheritance clearly: The language used in a disinheritance clause should be unambiguous and explicitly state that the individual in question is to receive nothing from the estate. Simply omitting their name from the will may not be enough to prevent them from claiming an inheritance.
Consult with an attorney: It is essential to consult with an estate planning attorney who understands the laws in your state. This can help make your disinheritance clause legally sound and will not be easily challenged in probate. They can also help you navigate any potential issues with spousal rights or state-specific protections for certain heirs.
Consider including an explanation: While not legally required, some testators choose to include a brief explanation of why they are disinheriting someone. This can provide clarity and reduce the likelihood of the disinherited party contesting the will. However, you should not include discriminatory reasons, which could invalidate the clause.
Review and update the will regularly: As with any estate plan, regularly reviewing and updating your will, especially if your relationships or circumstances change, can help you make sure that a disinheritance clause reflects your current wishes and meets legal requirements.

Bottom Line

Whether you are disinheriting someone due to personal conflicts, financial concerns or family dynamics, you will need to follow the required legal steps to make a disinheritance clause effective. Consulting an estate planning attorney and outlining your intentions in a will clearly can help prevent disputes.

Estate Planning Tips

A financial advisor could help you create an estate plan to manage and distribute assets to loved ones, and designate a guardian to look after loved ones when you are gone. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
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