How to Disinherit an Heir Properly

How to Disinherit an Heir Properly (1)

Disinheriting an heir is a sensitive matter and should be approached in a legally sound way. If not done properly, your intentions for your estate may not be carried out, or your heirs may end up fighting in court after your death. If you’re considering cutting someone out of your estate plan, you need to understand how to disinherit an heir properly.

What is Disinheritance?

Inheritance is the process of inheriting property from another person who has passed away. Disinheriting children means cutting them off from receiving a portion of the estate after you pass away. 

If you create an estate plan such as a will or trust, this legal document allows you to dictate how your assets will be divided after your death. You may leave your assets to family members, friends, nonprofits, or anyone else you desire. You may also exclude anyone you desire. The distribution of your estate plan overrules your “heirs at law”, meaning your blood relatives who would have inherited if you died without an estate plan.

You may create an estate plan with the intent of disinheriting certain adult children. Or you may initially include certain people and later decide to amend your original document to disinherit people who were previously included in your distribution. As long as you’re of a sound mind, you retain the ability to amend your estate plan until the time of your death.

Common Reasons to Disinherit an Heir

The decision to disinherit adult children may stem from a variety of reasons. Here are some common reasons parents opt to disinherit heirs:

  • They want to leave their estate to another person or organization: Individuals have the right to leave their assets to anyone they wish, whether it be their best friend, their church, or their favorite charity. 
  • Lack of a close relationship: Disinheritance is common when the individual has become estranged from an heir in recent years. 
  • Conflict over a child’s lifestyle choices: If a parent disagrees with a child’s life choices (such as addictions) or believes them to be financially irresponsible, they may choose to legally disinherit them. 
  • Previous gifting: If a person has already provided significant financial help to an heir during their lifetime, they may disinherit them to even out the discrepancy. 
  • Alternative gifting: If the person named an heir as a beneficiary of another valuable item outside of their trust, such as a retirement account or life insurance policy, they may disinherit them. 
  • Special Needs Children: Children with special needs often need to be disinherited because receiving an inheritance would disqualify them from receiving government benefits. Parents could instead create a Special Needs Trust for the benefit of that child.

Whatever the reason, you have the right to determine how they wish your assets to be distributed after your death. 

How to Disinherit an Heir Properly 

Before we discuss how to disinherit an heir, let’s start with what not to do. Never disinherit an heir by simply omitting their name from the distribution section of your will or trust. Leaving out a name of an heir is not sufficient if you wish to avoid them later contesting your estate plan in court. The disinherited party could assert that the omission was unintentional. A  judge could potentially decide that it was an accidental disinheritance and award them a portion of your estate.

Instead, you should specifically omit anyone you wish to disinherit by name. This makes it clear that the omission is intentional and not an oversight. For example, if you had a son named John Doe who you wished to disinherit, your estate planning attorney might insert a sentence like this into your estate plan:

“John Doe and his issue are hereby specifically omitted and disinherited for purposes understood by the family.” This general but effective phrasing accomplishes your intent without causing undue emotional harm to the disinherited person.

Disinheriting a Spouse

Is there anyone you cannot disinherit under California law? You cannot disinherit a spouse from your shared estate. As a community property state, all property a married couple attains during the marriage is considered to be shared. 

Most spouses create a revocable living trust together and transfer all their community property into that trust. When one spouse dies, the other spouse continues acting as trustee. When the second spouse dies, the successor trustee administers the trust, and the trust assets are ultimately distributed to the beneficiaries.

If one spouse owns separate property (such as an inheritance or assets they owned before marriage), and they wish to leave their separate property to someone other than their spouse, they can create a separate property trust. They could then transfer their separate property into that trust and designate the beneficiary of their choice to receive that property after their death.

Disinheriting Children

Besides a spouse, you also cannot disinherit a minor child. By law, if you were to die, your minor children are entitled to the same financial support they would have received if you were living until they turn eighteen. As long as your estate still has money, your minor children will be financially supported until they come of age. Disinheriting a child is only possible if they’re adults.

Seek Legal Counsel

If you’re considering disinheriting an heir, consult with an experienced estate planning lawyer. They can help you create an estate plan that will avoid or withstand any potential challenges in court after your death. 

Never try to amend your own estate plan to disinherit someone. Amending an estate plan on your own is never a good idea because the legal language used must be precisely written to avoid any ambiguity and potential litigation. Amending your own estate plan to disinherit someone is even more rife with potential for future litigation! Leave this work to an experienced estate planning attorney to keep your estate safe.

If you have any questions about how to disinherit an heir properly, feel free to contact our law firm.

Law Offices of Daniel A. Hunt

The Law Offices of Daniel A. Hunt is a California law firm specializing in Estate Planning; Trust Administration & Litigation; Probate; and Conservatorships. We've helped over 10,000 clients find peace of mind. We serve clients throughout the greater Sacramento region and the state of California.