Estate Planning Lawyer
Creating a Last Will and Testament can help make sure that a person’s assets pass to their family ones. As important as it is to designate who is to receive what, it can be just as important to state who is to receive nothing.
A person is considered disinherited when they are intentionally prevented from inheriting assets of an Estate. The most common and preferable method to leave a relative out of an inheritance is to make a statement of disinheritance in the Last Will and Testament.
DISINHERITING A SPOUSE
In general, you cannot flat out disinherit your spouse. The exact law varies, but most states have laws governing spousal rights, often called “community property laws” or “elective share laws”. These laws protect the surviving spouse’s right to inherit a portion of the marital estate.
If you wish to disinherit a spouse from receiving more than their marital share, the best method is to sign a prenuptial or postnuptial agreement. In this manner, the spouse consents to the limitation on their right to receive an inheritance.
Minor Children: You cannot disinherit children younger than 18 years old.
Adult Children: You can disinherit your adult children. This is never a light undertaking. It is recommended that a child be disinherited only after much thought and consideration.
If you decide that this action is best for you and your family, it is crucial to make the statement of disinheritance in your Last Will and Testament. You do not need to state specifically why you wish to disinherit your child in the Will; though many people find useful to include a letter to this disinherited child (separate from the Will) describing their intentions.
Other than a spouse and minor child, you can disinherit anyone you wish. Legally, you do not have to provide for an inheritance to your parents, siblings, cousins, aunts and uncles. However, depending on the intestate laws of your state, if you die without a spouse or children, these people may be entitled to receive an inheritance from your estate. If you desire that none of these relatives receive anything from your estate, it is best practice to create a Last Will and Testament with a specific statement of disinheritance.
Disinheriting a family member can have both legal and familial reverberations long after death. Wills that contain a statement of disinheritance are often contested in court. Disinherited family members may take out their frustration on other family members, both emotionally and litigiously. Before leaving a relative out of an inheritance, consult with an experienced estate planning lawyer in Phoenix, AZ who can help you decide if disinheriting a relative is the best choice for you.
Thanks to Kamper Estrada, LLP for their insight into estate planning and disinheriting relatives.
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