There are many perfectly good reasons to write somebody out of your will. You could be going through a divorce but still be legally married, and you want to make sure your spouse does not receive anything from your estate. Or perhaps your irresponsible child inheriting a large sum of money would be a waste. Maybe your children are taken care of by their grandparents’ trusts and you would rather leave your money to a charity. Or you may just have an estranged spouse or child to whom you do not wish to leave anything.
Whatever the reason, how do you exclude your spouse or children? It’s not always as easy as simply leaving them out of your will. Your spouse and children may have claims to a “statutory share” of your estate as “pretermitted heirs,” under the theory that they were forgotten by you, but that you actually intended to provide for them.
California presumes that your spouse is entitled to your half of all of the community property and the share of your separate property he or she would have received if you had died without a will. This protects against the common scenario where you write a will, then get married, but never amend your will to include your spouse as a beneficiary. On the other hand, if you are separated but not yet divorced, you must include specific language in your will or trust “disinheriting” your soon-to-be ex-spouse from receiving anything.
Generally, children have no right to inherit anything if their parents choose to exclude them or “disinherit” them in their wills. If you decide to disinherit a child or grandchild, you should clearly state your intention in your will or trust. There is one caveat: if you have additional children after making a will or trust, it is presumed that you intended to provide for those children in your estate. Without explicit language, these “pretermitted” children will automatically inherit the same share of your estate as if you died without a will.
If they get upset…
A disinherited spouse or child might contest your will in probate court. Such challenges can’t be based on the disinheritance itself. Rather, the child or spouse has to prove your will was improperly made or the product of fraud. Rest assured that if the court finds your will to be valid and not created under undue influence, it will generally honor your wishes.
Disinheritance is just one of the many topics addressed by your estate planning attorney. We are always happy to speak with you and answer any questions you might have.