Thinking Of Disinheriting Someone? Things You Should Know.

With changing family dynamics, you may be thinking about altering your estate plan to omit a certain family member from inheriting your assets after you die. Perhaps there has been a painful rift in the family that hasn't been repaired. Or you may have a family member who has been estranged for so long it makes no sense to reward them with an inheritance. Disinheriting a family member, like a spouse or child, is not something to be taken lightly. The decision requires some careful reflection, as it is not cut-and-dried.

Omitting your spouse

✦ Why would you want to do that? If you are truly motivated to disinherit your spouse, perhaps you should be talking to a family law attorney instead.

✦ Your spouse has property rights. You can't disinherit a spouse with a Will, no matter what language you put in. Your spouse has a right to receive a share of the augmented estate, the amount of which depends on how long the two of you were married.

✦ However, your spouse can choose to forfeit the share by waiving those property rights. There are three ways: prenuptial agreement, postnuptial agreement, or a consent to will (the spouse signs acceptance of terms of your Will in an addendum). All three require the spouse to affirmatively consent; you cannot unilaterally leave out your spouse.

 ✦ Why would a spouse agree to this? Maybe the spouse already has significant assets in his or her name and would rather see the share go somewhere else, like to children or a charity. Another reason may be (in the case of very large estates) concern over estate taxes from a large inheritance.

Omitting a child

 This is much more straightforward than disinheriting a spouse.

✦ Generally, there is nothing stopping you from disinheriting a child. But think carefully about why you would want to do so, and the repercussions that might ensue (resentment toward other heirs, Will contest, really awkward Thanksgiving dinners).

✦ Nevertheless, you may have valid reasons to exclude a child from your estate plan. An estranged child who was never a part of your life or hasn't been for a long time, a child with substance abuse or money-management issues, or an adult child who is very successful and doesn't need the money--leaving more for the other children who would need it more.

✦ If you decide to disinherit a child, it might be fair to tell the child now, to avoid a surprise after you die.

Keep in mind that no Will is guaranteed to withstand a contest (challenge in court), and any interested party can raise a formal objection against the validity of a Will. But a well-crafted Will can minimize the chance that a disinherited person would be able to overcome your stated wishes.

How to disinherit

There are two main ways to disinherit someone in your estate plan:

1. Specifically name the person you choose to exclude in your Will. You don't need to give a reason why you are disinheriting the person, and doing so might create resentment by the person. Simply state that you wish to leave nothing to that individual. But there's a catch: disinheriting someone by naming them in your Will gives that person standing to contest the Will after you die.
2. Simply leave out the name of the person from your Will. Be sure to add an "intentional omission" clause in the Will, stating that you have intentionally limited inheritances to those descendants who are named.

Myth: It is necessary to leave one dollar to an heir in your Will in order to disinherit them.

This urban legend never seems to die and it's probably been around for as long as people have been writing Wills. I've even heard a few attorneys suggest leaving a nominal sum to the disinherited person.

✦ If you have the legal right to disinherit someone (i.e., a child), leaving the dollar is unnecessary. Besides, leaving a dollar in a Will is like leaving a nickel tip for a waitperson in a restaurant. It sends a message that could be considered insulting and cause resentment. And as previously mentioned, naming someone in your Will gives them standing to contest it.

✦ If you don't have the legal right to disinherit someone (your spouse), leaving a dollar will not change the fact that your spouse has property rights and still gets the share of your augmented estate. Again, you cannot disinherit a spouse by means of a Will, no matter what language you put in it.

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Disinheriting a family member is a big decision that requires some thoughtful strategies. A good estate planning attorney can help you get started with a plan that is tailored to your wishes and goals.