In most situations, you can disinherit your heirs by simply leaving them out of your will. However, you generally cannot disinherit your spouse by will. According to most state’s probate laws, although you can disinherit any of your other relatives by written will, you cannot disinherit your spouse. Absent a valid prenuptial agreement created before you and your spouse married, you cannot use your will to disinherit your spouse.
Known as elective or forced shares statutes, surviving spouses have legal rights to minimum bequests. For example, your state most likely has a probate law allowing your surviving spouse to “elect” a minimum statutory share of her deceased spouse’s estate, instead of taking her testamentary bequest. This means that if you decided to leave your spouse a share of property below your state’s minimum elective statutory share, your spouse can reject the share under your will in favor of the minimum statutory share. In other words, your spouse most likely has a legal right to claim a third or other fraction of your estate.
Can you disinherit your other relatives, even though you may not be able to disinherit your spouse? Generally, you can in most states. This means that you can specifically omit your children as your legal heirs by stating such or not mentioning them. However, your state’s law may limit the disinheritance to existing children and not to children born after you created your will. Its important to consult with a qualified estate planning attorney to make sure that your intentions are properly carried out.
Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.