Sometimes family members have good reason for disinheriting someone. For example, a parent may have already given substantial assets to a spouse, child or grandchild, and feel like they’ve given enough. To ensure their intentions are followed, they disinherit that person. If you feel you were unjustly disinherited, read more.
What is the definition of disinheritance?
Disinheritance refers to the manner in which a person who might otherwise have received a gift from a loved one’s estate is left nothing. A common example would be where a parent leaves a child out of their will and trust, for whatever reason, or no reason at all.
Why disinherit someone?
There are many well-intentioned reasons to disinherit somebody. Commonly, a parent may disinherit a child to whom they have previously given substantial gifts during their lifetime. Because the child already received so much, the parent may leave their estate to their other children to balance out what each child gets. The parent will legally disinherit the child in their will or trust. However, an individual can choose to legally disinherit anyone they like, including a child, parent, spouse, or family member.
What are grounds for disinheritance from a family trust or will?
As long as the person is of sound mind and body, with full mental capacity, they may choose to disinherit any beneficiary or heir for any reason, or no reason at all. An exception to this general rule exists in those states that have “forced inheritance” laws that prevent complete disinheritance of children and/or spouses. Of course any heir with an intestate succession right may pursue litigation to seek to recover what they feel is their rightful inheritance.
The most common reasons for disinheriting someone:
Previous Inheritance Distribution
If the parent has given the child their inheritance during their lifetime, it’s quite common for the parent to disinherit that child, simply to balance things out among others who may not have received similar gifts..
Upon divorce, it’s common for ex-spouses to legally disinherit each other in their respective wills and trusts.
Lack of Relationship
If a child has no ongoing relationship with a parent, it’s common for the parent to disinherit the child in a will or trust. Of course, where a step-parent, child or caregiver interferes with that relationship, by isolating the parent, for example, undue influence and fraud claims might exist.
Conflict of Interest Over Lifestyle Choices
Sadly, it is all too common for parents to disinherit children simply because of a disagreement over the child’s lifestyle choices.
What are grounds for disinheriting parents?
The most common grounds for disinheriting parents are a Lack of Relationship or a Conflict of Interest, as described above.
If it’s a lack of relationship, we commonly see children disinheriting parents if the parent was absent during childhood, or if the parent was abusive when raising the child. In some cases, the parent and child simply drifted apart, and the child fears that the parent would misuse any inheritance they were to receive according to state probate code and intestacy law.
If it’s a conflict of interest, we see children disinheriting parents when they don’t see eye to eye about things, such as: How to raise their own children, lifestyle choices, religion, and other highly-charged emotional beliefs. In these cases, if the child is of sound mental capacity, they have every right to disinherit their parents in their will or trust.
Can parents contest or dispute their disinheritance if the child were to pass away? In many cases, yes. That’s why it’s important to work with an experienced estate planning attorney to limit the risk and manage the likelihood of success of future probate litigation.
What are grounds for disinheriting a child?
The most common reasons for disinheriting a child is a Previous Inheritance Distribution, Lack of Relationship, or Conflict of Interest for Lifestyle Choices, as described above.
If it’s an advanced inheritance distribution, the child has already received their inheritance during the parent’s lifetime. In these cases, the parent usually disinherits the child in order to equalize their estate between their children – e.g. to ensure everyone is treated fairly. For example, a parent may work with an estate planning attorney to create their estate plan. Part of that plan may be giving some or all of their children a portion of their inheritances during the parent’s lifetime. After doing so, the parent may partially or completely disinherit one or more of the children. Why? Because the parent acted to take care of the lifetime needs of one or more children but wants to make sure that all children are treated equally. All too often the child who received assets during the parent’s lifetime still will challenge their disinheritance. The only way to protect against this is to ensure your estate planning is air tight and everyone understands the reasons why you are partially or completely disinheriting someone.
If it’s a lack of relationship, the parent may feel there is no relationship with the child, and therefore the parent may feel the child does not deserve an inheritance. Whether the parent abandoned the child, or the child avoids the parent, it is fully within the rights of a parent to disinherit a child. There is no natural “right” to inherit. However, if the child feels they were wrongly disinherited, they should consult with a probate litigation lawyer or trust litigation attorney.
If it’s a conflict of interest about life choices, the parent may simply not support the child’s lifestyle choices. Maybe the parent thinks the child is too immature to deserve their inheritance, and will spend the funds inappropriately. Or there may be a fundamental disagreement over emotionally charged topics. In any case, it is within the parent’s right to legally disinherit the child. But again, if the child feels they deserve an inheritance, they should consult with a probate litigation lawyer or trust litigation attorney.
What are the legal rights of disinherited children?
A disinherited child has the legal right to receive a copy of the document that purports to disinherit him or her. A disinherited child also has the right to challenge the purported disinheritance for any of the reasons discussed previously. The key is to consult a probate litigation attorney or trust litigation attorney early to ensure key deadlines aren’t missed.
In many inheritance disputes, the child may claim the parent did not have the mental capacity to disinherit them. Or that the parent was the victim of undue influence or duress, which resulted in the child being disinherited. In any case, if the child feels they deserve an inheritance, they should seek council of a probate litigation lawyer or trust litigation attorney, as soon as possible.
What are grounds for disinheriting a spouse?
Disinheriting a spouse is legal in most common law states. However, the spouse has the right to dispute their disinheritance. In some states the spouse will need to engage counsel and file a contest. In other states, the spouse may need only file a Right of Election. In many cases, this is all that’s needed to establish their legal right to up to one-half of the estate’s community property — regardless if they were disinherited, or not.
Why can’t you disinherit your spouse in a will?
Firstly, you can disinherit a spouse in a will. If a spouse legally, contractually agrees to be disinherited they can and likely will be. However, if they refuse, then you have to pursue other options and negotiations. The laws vary from state to state, but in a community property state like California, your spouse will have a legal right to one-half of the estate assets acquired during the marriage, otherwise known as community property.
In common law states, an individual may choose to disinherit a spouse in their will. However, the surviving spouse may have a right to seek their rightful inheritance by filing a Right of Election. Generally, they will be legally entitled about one-third to one-half of the estate assets acquired during the marriage, depending on the state.
Where there is no community property right and no Right of Election, a spouse is free to disinherit their spouse in their trust or will.
Can I contest or dispute disinheritance?
In most states, a spouse who has not agreed to be disinherited can take legal action against a decedent who disinherited them in a will or trust. Also, disinherited children can take legal action, especially if they can show the decedent disinherited them due to undue influence, duress, or lack of mental capacity.
When do I need a probate litigation lawyer?
If you’re a child, spouse or anyone else who recently discovered you were disinherited in a will or trust, it’s important to act quickly to protect your rights. Conversely, if you are seeking to disinherit a spouse or child, you have several options to ensure you are doing it right: 1) An estate or probate Attorney 2) An estate planning Attorney, or 3) A divorce lawyer.
Do I need a probate litigation lawyer near me?
We recommend finding an experienced probate lawyer familiar with the county probate court in the county where the decedent lived. For example, if the decedent lives in Los Angeles, we recommend working with a probate litigation lawyer in Los Angeles. A Los Angeles probate litigation lawyer will generally be more familiar with the Los Angeles superior court Probate Division, versus an out of state attorney.
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