State laws may allow parents to disinherit one or more children when writing a will. There are different reasons why a child may be disinherited. For example, if parents disagree about a child’s lifestyle choices, they may choose to leave them nothing in their will. Children can 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 details of the situation. For help understanding this difficult situation, consider working with a financial advisor.
What Is Disinheritance?
Disinheritance means that someone who would otherwise expect to receive assets from an estate is left out of the deceased person’s will or trust. Each state recognizes certain heirs at law who are entitled to inherit, whether there’s a will in place or not.
These heirs at law can include a person’s:
- Aunts and uncles
Some of these people can be disinherited; others cannot. If you’re someone’s heir at law and they choose to disinherit you in their will, then you wouldn’t receive anything from their estate when they pass away. If someone dies intestate, then a different set of rules apply. In that case, the probate court would distribute assets to someone’s heirs according to state inheritance laws.
Disinheritance is not the same as disclaiming an inheritance. When you disclaim an inheritance it means you give up your right to receive any assets that would otherwise come to you as someone’s heir.
Can a Child Be Disinherited?
Generally, yes, it’s possible to disinherit a child and prevent them from receiving any assets from your estate after they pass away. To disinherit a child you’d need to explicitly state in your will that you do not wish for them to receive any of your assets. You could also word your statement to exclude any or your child’s descendants, meaning you’d be disinheriting your grandchildren, great-grandchildren and other future generations stemming from their line.
As to why you may want to disinherit a child there are varied reasons for doing so. You may want to exclude a child from your will if:
- 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, friend or to a 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 lifestyle choices
This applies to adult children. If you have minor children, then legally you wouldn’t be able to cut them out of your will. As long as your estate has assets you leave behind, state law would dictate that those assets be used to pay for the care and maintenance of your children.
You may be wondering if simply omitting mention of a child in your will is enough to exclude them from inheriting. The short answer is no. Leaving an adult child out of your will alone may not be enough to legally disinherit them. Likewise, you couldn’t 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.
Legal Rights of Disinherited Children
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 can’t 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 For example, they may be able to dispute the terms of their parents’ will if:
- 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.
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. 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 then you’d 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 then 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.
Being disinherited by your parents may come as something of a shock. But it’s important to understand what your rights are and what you may be able to do to challenge the terms of their will or trust. And 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 qualified financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one 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.
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