There are several reasons a person could feel a need for disinheriting a family member. There may be family arguments leading to estrangement, financial reasons, or even to protect one child over another. When someone decides to disinherit a family member such as his or her spouse or children, they need to do more than simply leave them out of the will. In most states, including California, to disinherit a child or spouse, you have to specifically state in your will that you mean to disinherit them. If you do not, the law assumes you made a mistake or forgot to include them, and provides for them anyway.
Disinheriting a Family Member – Spouse
There are three circumstances under which a spouse can be left out of a will:
(a) The deceased left the spouse out of the will intentionally, with the intention being clearly spelled out in the will;
(b) The deceased left the spouse money or property by other means outside the will or trust, and meant that to be in place of providing for the spouse in the will. There needs to be evidence of this, including through statements made by the deceased before she died;
(c) The spouse made a valid agreement waiving the right to a share in the deceased’s property.
An example of the latter might arise the context of a pre-marital agreement. If you get married after making a will that leaves out a spouse, make sure you update your will to take note of the new spouse. When you leave the spouse out with no explanation or other provision, they could still take one half of most of your property.
Disinheriting a Family Member – Child
There are three circumstances in which a child can be left out of a will or trust:
(a) The deceased left the child out of the will intentionally, with the intention being clearly spelled out in the will;
(b) The deceased left the child money or property by other means outside the will or trust, and meant that to be in place of providing for the child in the will. There needs to be evidence of this, including through statements made by the deceased before he died;
(c) The deceased left substantially all of his estate to the other parent of the omitted child.
Children left out of a will under other circumstances can receive the amount they would have received under the law if the deceased died intestate, i.e., without a will.
Another way to effectively disinherit someone is to leave them a small sum of money in the will, and then include a no-contest clause. A no-contest clause restricts beneficiaries from challenging the will under certain circumstances by threatening to completely disinherit them if they challenge the will.
If a court determines that a spouse or child was not meant to be disinherited, they will receive a share of the deceased’s estate even if it was already shared out among the other heirs. This is done by first taking the spouse’s or child’s share out of any undivided property, and then taking parts of the shares left to other family members or friends.
Preparing Your Estate Planning Documents
If you are considering disinheriting a family member and want to make a will or living trust, you can do so without an attorney. There are several steps to take and forms to complete. Contact A People’s Choice for low-cost legal document help. Although we cannot give legal advice, A People’s Choice can help you in preparing all the required legal documents to help you with your estate planning needs without having to hire a lawyer.