What Are the Legal Rights of a Disinherited Child?

State laws may allow parents who are writing a will to disinherit one or more children. This may happen for several reasons; for example, if parents disagree about a child’s lifestyle choices, they may choose to leave them nothing in their will. Children may also be left out of a will if they have already received their inheritance while their parents are still living. The legal rights of a disinherited child may provide some remedies, depending on the circumstances.

A financial advisor can help you achieve your estate planning goals so your wishes are honored after you are gone.

What Is Disinheritance?

Disinheritance is when someone who was originally set to receive a portion of a grantor’s estate is later removed from the will or trust.

However, each state recognizes certain heirs at law who are entitled to inherit, regardless of whether a will is in place. Heirs at law can include several members of a grantor’s family.

Spouse
Parents
Siblings
Children
Grandchildren
Aunts and uncles
Nieces and nephews
Cousins

Some of these people can be disinherited, while others cannot. If you’re someone’s heir at law and they choose to disinherit you in their will, you will not receive anything from their estate when they pass away.

However, if someone dies without a settled will, or intestate, a different set of rules applies. In this case, the probate court will distribute assets to someone’s heirs in accordance with state inheritance laws.

Disinheritance is not the same as disclaiming an inheritance. When you disclaim an inheritance, you give up your right to receive any assets that would otherwise come to you as someone’s heir.

Can a Child Be Disinherited?

Yes, it’s typically possible to disinherit a child so you can prevent them from receiving any assets from your estate after you pass away.

To disinherit a child, you must explicitly state in your will that you do not wish for them to receive any of your assets. You can also word your statement to exclude any of your child’s descendants, meaning you would also disinherit your grandchildren, great-grandchildren and so on.

As to why you may want to disinherit a child, there are many reasons for doing so.

They’ve already received substantial financial gifts from you during your lifetime.
You’ve made provisions for them to receive an inheritance through a trust or through beneficiary designations for retirement accounts and life insurance policies.
You want to leave the bulk of your estate to another family member or friend or to charity.
You’re disinheriting stepchildren from a marriage that ended in divorce.
There’s no relationship between you and the child.
A conflict of interest exists over your child’s choices.

These provisions only apply to adult children.

If you have minor children, you legally cannot cut them out of your will. As long as your estate has assets you leave behind, state law will dictate that those assets be used to pay for your children’s care.

However, simply omitting mention of a child in your will is not enough to exclude them from inheriting. Likewise, you cannot just cross out someone’s name in an existing will to keep them from inheriting. You’d have to add a codicil or draft an entirely new will to ensure that your wishes are upheld.

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Legal Rights of Disinherited Children

A woman considering the legal rights of a disinherited child.

Adult children have certain legal rights when it comes to inheriting assets or being disinherited by parents.

The exact laws may vary from state to state, but generally, disinherited children have a legal right to receive a copy of their parent’s will or trust. They also have the right to contest a will or a trust if they believe they’ve been wrongfully disinherited.

Children cannot contest a parent’s decision to disinherit them simply because they believe it was unfair. There has to be legal standing for them to contest a will or trust, such as the following.

They believe their parent was not of sound mind when drafting the will.
The will was not properly witnessed.
They suspect their parent made the will under duress or undue influence.

It may be possible to contest a will or trust after being disinherited. Particularly if you believe that a factual error resulted in your parents leaving you out. This may only apply in scenarios where there’s a disagreement over lifestyle choices. For example, if your parents disinherit you because they believed you were using illicit drugs or abusing alcohol, and you can prove that you were not, then you may be able to contest the will.

Can Other Family Members Get Disinherited?

While children are often the focus of disinheritance discussions, other relatives can also be excluded from a will or trust.

Parents, siblings, grandchildren and extended relatives generally do not have the same legal protections that spouses do. This means the person creating the estate plan has broad authority to decide whether these family members inherit anything, even though their orders are carried out by an executor.

For example, a parent may choose to disinherit an adult sibling who has been estranged for years or leave out grandchildren if provisions have already been made for their parents. In these cases, the disinheritance must be clearly stated in the will or trust. Simply omitting a name without clarification could create confusion and invite disputes during probate.

Unlike spouses, these family members usually cannot rely on elective share rights or statutory minimums to guarantee them a portion of the estate. Their only recourse would be to challenge the will or contest the trust in probate court by claiming that it was improperly executed, that the deceased lacked capacity or that undue influence played a role. Even then, such challenges can be expensive, time-consuming and often unsuccessful.

Because of these risks, people who want to disinherit family members outside of a spouse should do so carefully with the help of an estate planning attorney. Clear, unambiguous language in the estate documents reduces the chances of conflict.

Taking the extra step to explain the decision, either in the will itself or in a separate letter of intent, can also provide clarity for surviving relatives while reducing the likelihood of a contested estate.

How to Contest a Will or Trust If You’ve Been Disinherited

If your parents left you out of their will or trust, and you believe you have grounds to challenge it, then the first thing you may want to do is talk to an estate planning attorney and your financial advisor. An attorney can advise you as to whether you have legal standing to contest a will, while a financial advisor can help you figure out what type of financial documents you need to prove your claim.

You’ll have to go through the probate court to contest a will. The court will schedule a hearing, at which time you’ll be able to present any evidence you have supporting your claim. The court will then review the evidence and make a decision. If you win your case, you will be entitled to receive a share of the estate.

Keep in mind that there may be a deadline for contesting a will once the probate process has begun. If you miss this window, you may not be able to contest a will.

Also, be aware of whether your parents’ will includes a no-contest clause. This type of clause automatically inherits anyone who contests the will.

How to Document and Communicate a Disinheritance

If you plan to disinherit a child, it is essential to ensure this is clearly stated in your will.

Simply leaving someone out of a will can create ambiguity, and probate courts often default to state intestacy rules when a will is unclear. To avoid confusion, a will should explicitly state that a specific child or descendant is not to receive any portion of the estate.

It also helps to update all related documents so the disinheritance is consistent. This includes beneficiary designations for retirement accounts, life insurance policies, payable-on-death accounts and any existing trusts. Conflicting instructions across documents can undermine the intent and give the disinherited child grounds to challenge the estate.

Some parents choose to add a short explanation, either in the will or in a separate letter of intent. While not legally binding, this can reduce disputes and make it harder for someone to argue that the disinheritance resulted from undue influence or lack of capacity. The explanation does not need to assign blame; a simple factual statement is often enough.

Regular reviews of your estate plan are also important. Life events such as divorce, remarriage, estrangement or reconciliation may call for updates. Keeping your documents current helps avoid accidental inclusion or exclusion and gives executors a clear roadmap to follow during probate.

Bottom Line

Two lawyers discuss the legal rights of a disinherited child contesting a will.

Being disinherited by your parents may come as something of a shock, but it’s important to understand your rights and how you may be able to challenge the terms of their will or trust. If you plan to disinherit one or more of your children, then it’s also important to know how to do it legally to ensure your wishes are followed once you pass away. Otherwise, the process of determining the fate of your assets will be left to state laws and the probate court.

Estate Planning Tips

Consider talking to your financial advisor about drafting a will or building a larger estate plan. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with 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.
If you’re married you can’t legally disinherit a spouse. Inheritance laws in every state protect spouses from being disinherited. It may be possible, however, to leave a spouse out of your estate if they forgo their inheritance. This usually means signing some sort of waiver. You might want to do this if you’re married but separated or you’d both prefer to follow a different arrangement for dividing your respective assets. If your spouse is willing to give up their inheritance, it can be helpful to talk to an estate planning attorney to make sure it’s done legally.