Disinheriting a relative is a big decision that can carry a significant risk. While most people who write a family member out of their will do so only after careful consideration, California law presumes that some heirs are natural and customarily entitled to a share of the estate. Even if you trust that your loved ones will respect your wishes, you may still need to prepare your estate for the possibility of a contest.
The Importance of Anticipating a Challenge
Films and television series often use disinheritance as a plot device. However, writing a loved one out of a will is only an effective strategy for distant relations. Spouses and children, for instance, can only be disinherited if the testator provides an explanation for their decision.
Without any written instructions or clarification, a disinherited relative could simply claim that you had forgotten to leave them a gift. If they are a close relative—such as a biological child—there is a chance the court might concur, discarding your estate plan in favor of a child’s unfounded claim.
Mistakes to Avoid When Disinheriting a Relative
Disinheriting a loved one doesn’t have to be difficult, but it must be done right. If you are planning to strike a relative from your estate plan, you should avoid these common mistakes:
Using Ambiguous Language
According to the Golden State’s Probate Code, California residents cannot legally exclude a spouse from their estate unless they:
- Clearly and unambiguously explain their decision in the will
- Provide evidence that you have already left assets to your spouse
- Can furnish a pre-nuptial agreement showing that your spouse agreed to waive their rights to an inheritance before marriage
Children and other loved ones can be disinherited, provided the testator notes they were intentionally excluded—or stricken—from the will.
Forgetting to Address Unborn Children
If you plan to provide for your children through direct gifts or other means, you might have already planned to exclude any future, yet-to-be born children from your estate. However, any biological child will be presumed entitled to a share of your estate, even if they were born after you wrote your will.
Not Having a “No-Contest” Clause
A no-contest clause can be used to enforce the reduction of an heir’s inheritance. While no-contest clauses are subject to several critical restrictions, they can generally be used to disinherit an individual if they contest or object to a trust or a will or any of its provisions.
Believing a $1 Inheritance Can Avoid Contests
Some people mistakenly believe that leaving a token inheritance is insurance against an estate challenge. After all: a gift of even $1 should, at least in theory, show the court that the heir was not forgotten. However, even if the court upholds the provisions of your estate plan, a contest can be time-consuming, emotionally exhausting, and financially ruinous for the estate.
Since the decedent’s appointed executor must defend the estate from any challenges using the estate’s own assets, a failed contest could still cause the estate’s value to shrink considerably, depriving other heirs of their fair share.
Failing to Review Your Estate Plan
A disinheritance is only effective when it accounts for every contingency. All too often, estate planners over-emphasize their will and trust in disinheritance decisions.
However, inheritances come in many forms. Most bank accounts, IRAs, and investment portfolios have special beneficiary designations, which allow assets to transfer to an heir outside of probate.
Since assets governed by beneficiary designations are not subject to the probate court’s oversight, any omitted, non-probate assets could find their way to a disinherited heir without any means for recourse.
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