A common question asked of estate planning attorneys concerns the issue of disinheritance. Many people want to know if it’s legal to disinherit a child, grandchild, sibling, or even a spouse. If it is, how do you do it?
While no two situations are identical and you need to speak to an attorney if you need legal advice, there are some general principles surrounding disinheritances with which you should be familiar.
When it comes to inheritances, there is a basic legal system already in place in every state. These are known as laws of intestate succession, or laws of intestacy. Intestacy laws establish who inherits property from a deceased person if that person dies without a will, trust or other plan in place. In most situations, the deceased person’s closest family members will inherit his or her property, though the exact amount each person is entitled to inherit differs depending on how the property was acquired and the laws of the individual state.
Even though intestacy laws establish pre-existing inheritance rules, these laws are easily avoided by people who choose to create an estate plan. Essentially, if you craft an estate plan that states your inheritance wishes, you can ignore the intestacy laws of your state.
In other words, if you make an estate plan, you choose whatever inheritances you want. You are under no legal obligation to leave inheritances to those who would otherwise inherit from you should you die without leaving an estate plan. The one exception in most if not all states is that you cannot completely disinherit your spouse. Most laws allocate a “spousal share” to the surviving spouse, but how and what is included in that share varies by state.
Let’s look at a specific example. You have two adult children. At the time of your death you are not married and do not have an estate plan. Under these circumstances, each adult child would receive one-half of your property after your death because this is what the laws of intestate succession require.
If you had created an estate plan, you could choose to disinherit one or both of your children. You could leave your entire estate to your church, your alma mater, or even to a stranger you met on the street.
Disinheritances and Spouses
As I said earlier, while, as a general principle, you can disinherit anyone you like, this isn’t true when it comes to spouses. A spouse has an automatic right to inherit from the other spouse upon that spouse’s death. The only ways to avoid this automatic right of spousal inheritance is to terminate the marriage or voluntarily choose not to receive the inheritance.
If you’d like more information about inheritances, disinheriting someone, and spousal inheritance rights, you should talk to us for more information. Please join us for a free seminar, give us a call today at (405) 843-6100 or contact us online.