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Disinheriting a Relative Can Be Complicated
Published August 19, 2008
Can a relative be completely removed from your will? It’s often possible, but you should check with a qualified estate attorney about laws in your area.
Although we may love them equally, all children aren’t the same, which often leads to complication in the execution of a will. Some parents feel that one child has received more, and should therefore be content with a reduced settlement in the will’s execution. In some complicated situations, parents feel that one heir should simply be cut from the will altogether. Regardless of the reason, disinheriting a close relative–especially a spouse or a child–can be complicated.
Spouses, particularly, are difficult to disinherit completely. Regardless of your will’s provisions, most states have enacted laws that prevent a spouse from losing everything. In “community property” states, each spouse owns half the community property. Other states have laws that automatically entitle a spouse to specific portion of your estate.
Even if you don’t completely disinherit your spouse, they are often free to choose between the will’s provisions and the benefit the state allows them (the “statutory share,” usually one-third to one-half of the estate). The only solution is to enter into an agreement with your spouse in which you each waive the right to receive anything from the other’s estate.
Disinheriting a child is a different story altogether. Laws vary widely from state to state, with Louisiana being the only state that does not allow an adult child to be disinherited. The wide variety of state provisions regarding children’s inheritance makes it necessary to consult a qualified estate attorney in your state when drafting an airtight will. While some states do not require that you leave anything to your adult children, most have laws designed to protect minor children. For example, Florida requires that you leave your house to either your spouse or a minor child, if they are living. In addition, there are often laws that protect children born after a will was written. To be safe, even if you are leaving a child nothing, you should specifically mention the child in the will, along with the reason the child is getting nothing or a reduced amount. If you don’t mention a child at all, the state may conclude that you did not intentionally exclude the child.
Disinheriting a close relative is uncomfortable, and often causes fights among family members. Squabbles over wills can drag on for years and prevent your heirs from receiving their inheritance, so if you are planning on disinheriting someone, it is important to take as many precautions as possible and consult with an elder law or estate planning attorney.
To learn more about New York elder law, visit www.littmanKrooks.com.
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