Disinheriting someone is a serious decision and should not be taken lightly. It is advisable to consult with an attorney to ensure that you are correctly following all the laws and regulations in your specific state and situation. Here is a general step-by-step guide on how you might proceed in California. Remember, this is not a replacement for legal advice:
Seek Legal Advice: The first step is to consult with an estate planning attorney who can provide you with legal advice tailored to your specific situation.
Write a Will or Create a Trust: The most common way to ‘disinherit’ someone is by excluding them from your will or trust. You can specify exactly who should inherit your property after your death. Excluding means not mentioning them at all, rather than saying “My daughter Angel shall receive nothing under this will”. In fact, a “disinheritance clause” has an exact legal meaning: “A disinheritance clauseis a provision stating the author’s intention not to provide for persons who would otherwise be entitled to inherit all or part of the author’s property.” You are not required to leave anything to adult children or other relatives. However, a surviving spouse cannot be ‘disinherited’. California is a community property state. This means that both spouses own all income earned by either spouse during the marriage and all property acquired with that income 50/50. Upon the death of one spouse, the surviving spouse already owns their half of the community property, regardless of what the will says.
When is a specific disinheritance clause needed?
A specific disinheritance clause is needed for “omitted heirs”. These are people who in the absence of clear language to the contrary are heirs by operation of law. The idea behind this is that these persons were not mentioned in the will by mistake or inadvertent failure to include them. These are:
- A surviving spouse who married the testator after the execution of all of the testator’s testamentary instruments, including wills and revocable trust instruments;
- A child born or adopted after the execution of all of the testator’s testamentary instruments, including wills and revocable trust instruments; or
- A child living at the time of all of the testator’s testamentary instruments effective at the time of the testator’s death, including wills and revocable trust instruments, if the testator failed to provide for the child solely because the testator believed the child to be dead or was unaware of the child’s birth.
If the intent is to exclude any of these persons, the will must specifically say so with a disinheritance clause.
Avoid will disputes: Many attorneys will still use a disinheritance clause to mention a person specifically “My daughter Angel shall receive nothing under this will” even if this is not strictly necessary (see above). They believe that this person could contest the will under a theory that they were inadvertently omitted because all the other kids were mentioned. Others feel that this could be inflammatory and would have the opposite effect.
An often-used strategy to discourage will disputes is a no-contest clause. A no-contest clause is a provision in a will intended to prevent beneficiaries from questioning or disputing it. If a beneficiary does challenge the will, they risk losing what they were supposed to receive from the estate. A “no contest” clause is effective only against those people who would inherit under the will. For this reason, it may be better to give a disfavored person a small bequest, so they have something to lose.
Unfortunately, statutory changes effective since 2010 have taken much of the teeth out of no-contest clauses. “In general, the new scheme provides that any direct contest, as defined, that is brought with probable cause does not violate the no-contest clause.” 2 California Wills & Trusts § 40.06 (2023).
It is perhaps more important for the attorney to pay attention to documenting that the testator was of sound mind, and pay attention to technical matters, such as preventing all assets are properly disposed of under the will (using a residuary clause) so that nothing can inadvertently pass to the ‘disinherited’ person under the laws of intestacy. 23 California Legal Forms–Transaction Guide § 61.17 (2023)
Update Your Beneficiary Designations: Many types of assets pass outside of a will or trust, including life insurance policies and retirement accounts. Make sure your beneficiary designations for these types of assets are updated and consistent with your intention to disinherit a specific person.
Revising Your Estate Plan: Keep your estate planning documents up to date. Any time there’s a major change in your life, revisit your will or trust with your attorney to make sure it still reflects your wishes.
Lastly, remember that wills and trusts are complex legal documents, and the laws governing them vary from state to state. It is always wise to consult with an experienced attorney when creating or modifying these documents.
