Legal Considerations With Disinheriting An Heir

Occasionally, the time will arise in which a client requests the preparation of a Will or Trust that intentionally excludes a family member. When this occurs, it is imperative to address not only the formal requirements that apply under New York law, but also the practical considerations that often prove equally important.

One of the first questions often asked is whether a Will must expressly state that a person is being disinherited. In most cases, the simple answer is no.

Under New York law, the only person to whom you are legally required to leave assets to is your spouse, absent a valid prenuptial or postnuptial agreement. All other relatives, including children, siblings, parents, nieces, or nephews, have no automatic legal right to inherit under a Will or Trust.

If an individual has no legal entitlement to inherit from you, then they will receive nothing, regardless of whether you expressly mention them or not in your Will or Trust. For example, a client may wish to leave assets to three nieces or nephews, even though there are four or five in total. It is not necessary to name those who are not receiving anything. However, there are situations where it is wise to identify a person explicitly – such as when that person might otherwise become an alternate heir if other beneficiaries predecease the testator. For instance, if a client wishes to disinherit a child, and all primary beneficiaries die before the client, that child might inherit under the default intestacy laws unless the Will specifically excludes that person. In those cases, it's best to make the disinheritance clear.

Finally, it is important to note that non-relatives cannot contest a Will simply because they were left out, as they lack the legal standing to do so.

A common misconception is that is safer to leave a small bequest – say, for example, one dollar – to a relative who would otherwise be disinherited. They believe this shows the person was not forgotten. In practice, however, this approach usually creates more problems than it solves, for two key reasons:

• First, naming a person in a Will gives them standing to contest it. A disinherited person who is not mentioned may have a much harder time gaining access to the court process.
• Second, once named, that person becomes entitled to receive notice of all estate proceedings and documents, and can delay administration by refusing to cooperate or raising objections.

In short, when the intention is to exclude someone, it is generally preferable not to include them in the Will at all, unless there is a legal reason to do so.

While excluding other relatives can seem more straightforward, people often ask: can you disinherit your spouse or children? The answer depends on who you are trying to exclude. In New York, there is no legal requirement to leave your children anything. You may disinherit them entirely if you wish. For spouses, the situation is different. Under New York's "right of election," a surviving spouse is entitled to claim a minimum share – typically the greater of $50,000 or one-third of the estate – even if the Will leaves them nothing. This right can be waived through a valid prenuptial or postnuptial agreement. So, while you can freely disinherit a child, you cannot completely disinherit a spouse without a prior written waiver.

Having considered who can be excluded under New York law, the next practical question to consider is which estate planning tool – a will or a trust – is more effective for disinheritance. Largely, the legal rules on disinheritance are the same for Wills and Trusts. However, the two differ in how disputes arise and are handled. A Will must be filed in Surrogate's Court and becomes part of the public record. This makes it easier for relatives to learn about it and to file objections. A Trust, by contrast, is a private document that does not go through the court system unless someone takes the initiative to challenge it. This privacy can make a Trust more difficult to contest.

That said, there are trade-offs. The legal capacity required to create a valid Trust is higher than the capacity required to make a Will. If a client is elderly or ill, it may be safer to use a Will, which has a lower standard for competency, even though it is more public.

Disinheritance can be a sensitive and complex topic, both legally and personally. If you are considering excluding a relative from your estate plan, it is essential to understand the legal implications and the practical strategies for minimizing disputes. The right approach will depend on your relationships, your goals, and your overall estate plan.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.