You do not need to disinherit people in your will that are not related to you and would not inherit from you under the intestacy laws of your state. For example, you do not need to include language in your will to disinherit a former friend, classmate or girlfriend, because a person with that relationship to you will not inherit from your estate if you die without a will.
It may not be a good idea to disinherit a person you want to handle certain responsibilities for you after your death. For example, if you made arrangements for a spouse, child or other relative to serve as guardian of your children, care for your pets, manage your business, serve as executor of your estate, serve as trustee of your living trust, make your funeral arrangements or carry out your last wishes, it may not be a good idea to disinherit that person in your will, unless the person is likely to understand your reasons for doing so.
Before attempting to disinherit a spouse or child, review the probate laws of your state to determine if they have a legal right to claim a statutory share of your estate. See disinherit a spouse. After reviewing these laws, if you still plan to disinherit your spouse or child in your will, consult an attorney licensed in your state for help drafting the will. Failure to handle disinheritance properly in estate planning documents can lead to will and trust disputes which could result in your intended beneficiaries receiving a much smaller inheritance.
How to Disinherit Other Heirs
If you have no surviving spouse, children or grandchildren, your other surviving relatives, such as distant cousins or uncles, may inherit from your probate estate if you end up dying without a will. If you do not want certain relatives to inherit from your estate, make a will and use appropriate language to disinherit the relative.
Pretermitted Heirs
A pretermitted heir is a child, spouse or other descendant of the testator that was not mentioned in the testator’s will but whom would have inherited a share of the testator’s estate under state law if there was no will. If you fail to mention your spouse or a child in your will, in most states your spouse or child has the right to inherit from your estate under state intestacy laws. For example, if you have a child born after the date of your last will and the child is not mentioned in your will, the child will usually have the right to inherit from your estate as if you had died intestate.
How to Disinherit a Child
With the exception of a few states, you are not required to leave anything to your children, provided you make a valid will leaving your entire estate to other beneficiaries. There is no requirement that you state a reason in your will about why you disinherited your child. You can give a reason if you choose. You can leave all your property to your spouse and nothing to your children. Another alternative is to leave all your property to your spouse and name your children as contingent beneficiaries to inherit your estate if your spouse dies before you.
The law presumes you would want your child to inherit from your estate, so to overcome that presumption, your will must show you did not unintentionally overlook your child and were not operating under a mistake when you omitted your child from your will. For this reason, to effectively disinherit a child, you must specifically mention the child in your will and then use language to indicate you have intentionally failed to make any provision for that child. If you fail to mention your child in your will, your state may award the child his or her intestate share of your estate as if you died without a will.
If you are planning to disinherit an illegitimate or nonmarital child that you have acknowledged throughout the child’s life as being yours, be aware this type of disinheritance often results in a lawsuit against the estate.
Because each state has its own unique laws regarding what a child is entitled to inherit from a parent, review the laws of your state before making an estate plan that disinherits your child. For example, Florida law protects a surviving spouse and child from total disinheritance by requiring the head of a family to leave his home or residence to his spouse or his child and no other beneficiary. If you simply use a boilerplate will form, you could violate important state laws that prevent your estate from being distributed according to your intended estate plan.
It is important to distinguish between disinheriting a child and leaving property to your children in unequal shares. Parents may divide their estate in unequal shares for a variety of reasons. If you are considering leaving one child a larger inheritance, visit our Unequal Shares page for more information.
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How to Disinherit an Ex
If you have an existing will that leaves property to your ex-spouse because you have not updated your will since you were divorced, it is very important to properly update your will with a codicil or make a new will if you do not want your ex-husband or ex-wife to inherit from your estate. You may also make a new will or update your existing will after you file for divorce or while the proceedings are in process.
In most states, even after you divorce your ex-spouse, if you have not revised or replaced the will you made during the marriage, and that will leaves a bequest to the ex-wife or ex-husband, the ex-spouse will be entitled to receive the inheritance because your will was not amended or a new will was not made after the divorce.
What is a No-Contest Clause?
A no-contest clause is a provision in a will that states if any beneficiary contests or challenges the will, that beneficiary will not receive anything from the estate if the beneficiary’s challenge is unsuccessful. A no-contest clause is designed to discourage heirs from contesting a will by reducing or eliminating the property the heir will receive if he or she contests the will.
A no-contest clause is one of the best ways to prevent an expensive claim against your estate. If you want certain beneficiaries to receive your estate, but leave nothing to another heir that is likely to file a will contest, the heir may have nothing to lose by filing a lawsuit. If instead that heir risks losing a significant bequest in your will as part of a no-contest clause, the heir may be discouraged from starting a will dispute.
A will contest can drain your estate of the assets you want your intended beneficiaries to receive. A properly drafted no-contest clause in your will can avoid this. If you think one or more of your heirs is likely to challenge your will or living trust, have an attorney prepare your estate plan.
Residents of California should consult a probate lawyer for information about a recent change in California law regarding the enforceability of no-contest clauses in California wills, trusts, and estate plans. See our page on CA No-Contest Clauses for more information.
Changing Your Will to Disinherit an Heir
For more information about how to change your will to disinherit an heir, visit our Change My Will page.
Disinheritance Language for Wills
To the extent the heir can legally be disinherited, a sample disinheritance clause that can be used is: I have intentionally failed to provide for my daughter, Jane.
Be sure to mention each of your children by name in your will, even if you include language to disinherit one of them. Many states require a child be specifically mentioned in a will to be disinherited. Otherwise, the law presumes the testator unintentionally overlooked the child and will allow the child to inherit what he or she would have inherited if there was no will. If you want to disinherit an heir, ask your attorney to include a disinheritance clause in your estate planning documents.
If you make a living trust, you should still make a pour-over will to disinherit an heir. Refer to our page on Types of Wills for more information. Most states require a will to be used to disinherit someone rather than other estate planning documents. If you fail to make a will, the heir you intend to disinherit may still inherit from your estate because the disinheritance was not done properly.
It is a common misconception that the legal way to disinherit someone is to leave the sum of one dollar or some other nominal amount to the heir in your will. Leaving your child one dollar does not prevent him from filing a will contest. Whatever language you include in your will, you cannot prevent an heir from filing a lawsuit against your estate. Any person who has standing and states a claim can contest a will.
Here are some other steps you can take to support the disinheritance:
Include a no-contest clause in your will;
Include a residuary clause in your will;
Videotape your will signing; and
Write a letter explaining your reasons for disinheriting the person and attach it to your will.
