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Is it Really Possible to Disinherit Someone?

Fri Mar 29, 2019 | Will Challenges |

You’ve likely seen something like this in a movie: At the reading of the will of a recently deceased family patriarch, the executor dramatically reveals that one or more heirs have unexpectedly been disinherited as a form of revenge for a long-ago transgression. But does this actually happen in real life? The answer is yes, although it is rarely as dramatic or unexpected as in the movies. Disinheritance of family members is quite common, and we will examine how it can be done here.

How to Disinherit Someone

The guiding principle when administering a decedent’s estate is that the executor should distribute the assets as the decedent would have wished in accordance with the terms of the will. As such, if you are planning on disinheriting a potential heir, you should make it very clear that that is your intention by stating something like “For reasons that are known to me, I do not intend to leave anything to X or X’s lineal descendants.” It is neither necessary nor advisable to spell out your exact reasons for disinheriting a particular person in your will, since doing so can create an opportunity for the disinherited person to challenge it. You should also avoid the temptation of leaving the person a paltry amount (such as $1), as doing so makes them a beneficiary of the estate and entitles them to receive an accounting of its assets.

Intent vs. Mistake

While it is technically possible to disinherit someone simply by not mentioning them at all in a will, doing this can create fertile ground for a will challenge. In most cases, the courts presume that a testator would have wanted to provide for the individuals who normally would expect to receive an inheritance, such as the testator’s spouse, children, and other close family members. Merely leaving one of these individuals out of the will — especially a child — can create an opportunity for the disinherited individual to challenge the will on the grounds that the testator made a mistake. A similar scenario can arise in cases of children who are unintentionally disinherited as a result of being born after the will was executed (known as “pretermitted children”). In those cases, the court generally will award the accidentally disinherited child the share of the estate he or she would have received had the testator died intestate. Thus, if you want to disinherit someone, you should clearly state your intent to do so in your will.

Two Major Exceptions

As with most areas of law, there are always exceptions to the general rule (in this case, two). A testator’s spouse cannot be disinherited because he or she is entitled to take an elective share of the testator’s estate, regardless of the provisions of the will. It is also not possible for a testator to disinherit minor children, as the law requires parents and legal guardians to support minor children until they reach the age of majority.

Contact a Boca Raton Will Challenge Attorney

Disinheriting a family member is not something to be undertaken lightly, and you should speak with an attorney if you intend to do so. Conversely, if you have been disinherited due to what you believe to be a mistake, you will need competent representation to mount a challenge of the will. For more information about disinheritance and will challenges, contact at Boca Raton will challenge attorney at the Ellis Law Group by contacting us online or calling 561-910-7500.