Contesting a Will When the Estate is Left to the Surviving Spouse
It is fairly common for a husband and wife to leave their entire estate to each other, with the first deceased parent leaving little or nothing to the children. Often, this is because each parent is relying on the other to leave their remaining property to the children. In some situations, though, the first parent to die has intentionally disinherited one or more of the children by leaving everything to the surviving spouse. If you are the child of a parent that disinherited you by leaving everything to their surviving spouse, think carefully about the ramifications of contesting the will. While you may be tempted to contest your deceased parent's will, filing a claim against the probate estate may anger the surviving spouse so much that you will be guaranteed to be cut out of their will as well.
When you contest a will, you must do battle with the executor of the estate. The executor is often the same person who inherited the estate. Contesting a will involves litigation which can cause irreparable damage to family relationships. If the deceased left his or her entire estate to the surviving spouse, you will be attempting to take away money and property from your parent or stepparent. Whatever the status of your relationship with your parent or stepparent before the estate litigation, they will undoubtedly feel less charitable toward you afterward. If your deceased parent's estate plan gives the surviving spouse full control over estate assets, the surviving spouse may be able to disinherit you completely, thereby preventing you from receiving any inheritance of your family’s property.
If you are in this situation, you should also be aware of the risk of losing your will contest. If your will contest is unsuccessful, the surviving spouse could make a will or living trust that ensures you won’t receive any property from either your deceased parent's estate or the surviving parent’s estate.
Probate courts make every effort to enforce a testator’s will. They interpret wills with the presumption that the last will reflects the testator’s intentions regarding his property. Unless your attorney has advised you have an extremely good chance of winning your case, the more prudent course of action may be to focus on mending your relationship with your surviving parent or stepparent in hopes you will eventually be given your fair share of family property. To learn more about will contests, visit our Will and Trust Disputes page.
Contesting a Will Based on Undue Influence
If you were cut out of an inheritance or the amount of your inheritance was reduced as the result of someone improperly exercising influence over the testator to change his estate plan, you may be able to file a will contest on the grounds of undue influence. To learn more about these types of lawsuits, see our page on Undue Influence.