When creating a will, one of the first steps is to determine who your beneficiaries are. This can involve selecting who will inherit and, sometimes, determining who will not. You can disinherit a close family member for a variety of reasons. For example, some people disinherit a child because of a breakdown in the relationship, and other times they disinherit a potential heir because they have taken steps to care for the child in a different way, such as a life insurance policy or a joint bank account. No matter the reason, disinheriting can lead to potential problems if not done correctly.
In both NY and NJ, you cannot disinherit a spouse without a previous agreement. This agreement can be pre-nuptial or post-nuptial but it must be written in a way that would make the agreement recordable by a county clerk. Absent this type of agreement, a spouse can elect to have the will set aside and instead receive a share of the estate determined by state law. Steps taken to end the marriage, for instance divorce or a signed separation agreement, end all inheritance rights. Similarly, abandonment can end a spouse’s right of election. This is not automatic, a probate court will have to decide if the right against disinheritance has ended.
The law does not prohibit you from disinheriting your children, but it can still be a tricky proposition. If you have a large enough estate, and/or the disinherited person is angry enough, a person unhappy about what they received could contest your will.
Courts also sometimes have the ability to include a child not included in your will if you had the child after you created your will. The other beneficiaries can also agree to share with the disinherited child. If you want to disinherit a child and want to avoid some of these issues, there are several steps that you should take. The first step is to expressly mention in the will the person that you want to disinherit. The will should specifically say that the person is disinherited. You should not give a reason why you are disinheriting the person in the will itself. If you give a reason in the will, that will open the door for the disinherited person to contest the will by offering evidence that the reason for the disinheritance was untrue. If you’d like to include the reasons for disinheriting, you can attach a letter to the will that is not part of the actual legal document. This being said, with the exemption of children that you have after the will is written, you are able to disinherit a child by simply not listing them in the will.
Other friends and relatives
Much like with your children, there is no law stopping you from disinheriting any other members of your family or your friends. If you do not list them in your will, it is the same as if you specifically disinherited them. Again, if your estate is large enough, or the disinherited person is angry enough, they can contest your will. If you want to avoid contests, consider giving small bequests to those people you think may be angry enough, if excluded, to possibly take up the expense of contesting your will.
It is almost always valuable to have conversations about your wishes and your estate plan with your loved ones. These can be difficult conversations, but having them now can avoid upset and will contests in the future.
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