Disinheriting A Spouse or Child

Generally, individuals are free to leave their estate to whomever they want. However, one cannot completely disinherit one’s spouse. In general, a spouse is entitled to the greater of $50,000 or one-third of the deceased spouse’s net estate. This is called the surviving spouse’s elective share. If the deceased spouse does not leave the foregoing amount to the surviving spouse, the surviving spouse has the right to elect against the deceased spouse’s estate. The surviving spouse has the right to receive the elective share outright: the elective share is not satisfied by leaving the assets in trust for the surviving spouse. In general, the elective share includes all the deceased spouse’s assets except for life insurance. For example, if the deceased spouse had the following assets:

1.  bank account in his sole name:                                                                  $100,000

(This account passed through his will to his son)

2.  joint bank account with his spouse:                                                           $ 50,000

3.  a brokerage account transferable upon death to his son:                 $500,000

Total estate assets:                                                                                                $650,000

The surviving spouse was left only $50,000. Assuming the debts, administration expenses and reasonable funeral expenses were $30,000, the net estate would be $650,000 – $30,000 or $620,000. One-third of $620,000 is $206,666.67. The surviving spouse received $50,000 from the joint account, so the remaining amount of the one-third to which she is entitled would be $156,666.67. The surviving spouse would have a right to demand this amount from the deceased spouse’s estate.

One can completely disinherit one’s children. However, various factors should be taken into consideration and lawyers will be extra careful when they are aware that a child is being disinherited. One factor is the future relationship with the child’s siblings. For instance, the disinherited child may have a tenuous relationship with his or her siblings and if that child is disinherited, it may destroy the relationship altogether.

Also, when you disinherit a child, you need to expect that the child may contest being disinherited. The disruption and trauma to the family of such a contest should be considered. One thing you might do to avoid a contest is to leave the child a sufficient amount to discourage a lawsuit and put a clause in your will or trust that says that the child will receive nothing if he or she contests your will or trust.

You must also be mindful of a possible claim that you were unduly influenced.  One thing you want to avoid is having the “good” child in the room with you and your attorney while you are discussing that you want to disinherit your “bad” child.

The disinherited child might also claim lack of capacity to sign the will or trust.  There might also be a claim of fraud, duress or coercion.

If your will is probated, the disinherited child will receive notice of the probate of your will. If the disinherited child is estranged from the family, the notice requirement may cause an additional expense to the estate in trying to find this child. When the disinherited child receives the notice, he or she may decide to object to the probate of the will. Sometimes individuals will set up trusts when they are disinheriting a child to avoid having to give notice of the probate. Avoiding probate does not guarantee that you will avoid a lawsuit but the harder you make it for the disinherited child to bring a proceeding, the less likely it is that it will be brought.

The above discussion is with respect to New York law but other states have similar laws.  Nevertheless, the purpose of this blog article, as well as all our other blog articles, is to give general information and not legal advice.

Everyone is entitled to arrange his or her affairs the way he or she sees fit. However, as shown above, if one decides to disinherit a member of her immediate family, careful planning should be done to avoid a successful lawsuit against one’s beneficiaries.