Email FacebookTwitterMenu burgerClose thin

What Are the Legal Rights of a Disinherited Child?

Byline profile imageWritten by Rebecca Lake, CEPF®
|
Byline profile imageEdited by Mo Mozuch
Byline profile imageEdited by Arturo Conde, CEPF®
Updated on
| fact checked badgeFact Checked
SmartAsset maintains strict editorial integrity. It doesn’t provide legal, tax, accounting or financial advice and isn’t a financial planner, broker, lawyer or tax adviser. Consult with your own advisers for guidance. Opinions, analyses, reviews or recommendations expressed in this post are only the author’s and for informational purposes. This post may contain links from advertisers, and we may receive compensation for marketing their products or services or if users purchase products or services. | Marketing Disclosure
Share

State laws may allow parents who are writing a will to disinherit one or more children. There are different reasons why a child may be disinherited. For example, if parents disagree about a child’s lifestyle choices, they may choose to leave them nothing in their will. Children can also be left out of a will if they have already received their inheritance while their parents are still living. The legal rights of a disinherited child may provide some remedies, depending on the details of the situation.

A financial advisor can help you understand these questions along with any other you have about estate planning.

What Is Disinheritance?

Disinheritance means that someone who would otherwise expect to receive assets from an estate is left out of the will or trust. Each state recognizes certain heirs at law who are entitled to inherit, whether there’s a will in place or not.

These heirs at law can include a person’s:

  • Spouse
  • Parents
  • Siblings
  • Children
  • Grandchildren
  • Aunts and uncles
  • Cousins

Some of these people can be disinherited; others cannot. If you’re someone’s heir at law and they choose to disinherit you in their will, then you wouldn’t receive anything from their estate when they pass away. If someone dies intestate, that means without a settled will, then a different set of rules apply. In that case, the probate court would distribute assets to someone’s heirs according to state inheritance laws.

Disinheritance is not the same as disclaiming an inheritance. When you disclaim an inheritance, it means you give up your right to receive any assets that would otherwise come to you as someone’s heir.

Can a Child Be Disinherited?

Generally, yes, it’s possible to disinherit a child and prevent them from receiving any assets from your estate after they pass away. To disinherit a child, you’d need to explicitly state in your will that you do not wish for them to receive any of your assets. You could also word your statement to exclude any of your child’s descendants, meaning you’d be disinheriting your grandchildren, great-grandchildren, and so-on.

As to why you may want to disinherit a child, there are varied reasons for doing so. You may want to exclude a child from your will if:

  • They’ve already received substantial financial gifts from you during your lifetime
  • You’ve made provisions for them to receive an inheritance through a trust or through beneficiary designations for retirement accounts and life insurance policies
  • You want to leave the bulk of your estate to another family member, friend or to a charity
  • You’re disinheriting stepchildren from a marriage that ended in divorce
  • There’s no relationship between you and the child
  • A conflict of interest exists over your child’s lifestyle choices

This applies to adult children. If you have minor children, then legally you wouldn’t be able to cut them out of your will. As long as your estate has assets you leave behind, state law would dictate that those assets be used to pay for the care and maintenance of your children.

You may be wondering if simply omitting mention of a child in your will is enough to exclude them from inheriting. The short answer is no. Leaving an adult child out of your will alone may not be enough to legally disinherit them. Likewise, you couldn’t just cross out someone’s name in an existing will to keep them from inheriting. You’d have to add a codicil or draft an entirely new will to ensure that your wishes are upheld.

Legal Rights of Disinherited Children

A woman considering the legal rights of a disinherited child.

Adult children have certain legal rights when it comes to inheriting assets or being disinherited by parents. The exact laws may vary from state to state, but generally, disinherited children have a legal right to receive a copy of their parent’s will or trust. They also have the right to contest a will or a trust if they believe they’ve been wrongfully disinherited.

Children can’t contest a parent’s decision to disinherit them simply because they believe it was unfair. There has to be legal standing for them to contest a will or trust. For example, they may be able to dispute the terms of their parents’ will if:

  • They believe their parent was not of sound mind when drafting the will
  • The will was not properly witnessed
  • They suspect their parent made the will under duress or undue influence

It may be possible to contest a will or trust after being disinherited. Particularly if you believe that a factual error resulted in your parents leaving you out. This may only apply in scenarios where there’s a disagreement over lifestyle choices. For example, if your parents disinherit you because they believed you were using illicit drugs or abusing alcohol, and you can prove that you were not, then you may be able to contest the will.

Can Other Family Members Get Disinherited?

While children are often the focus of disinheritance discussions, other relatives can also be excluded from a will or trust. Parents, siblings, grandchildren and extended relatives generally do not have the same legal protections that spouses do. This means the person creating the estate plan has broad authority to decide whether these family members inherit anything, even though their orders are carried out by an executor.

For example, a parent may choose to disinherit an adult sibling who has been estranged for years or leave out grandchildren if provisions have already been made for their parents. In these cases, the disinheritance must be clearly stated in the will or trust. Simply omitting a name without clarification could create confusion and invite disputes during probate.

Unlike spouses, these family members usually cannot rely on elective share rights or statutory minimums to guarantee them a portion of the estate. Their only recourse would be to challenge the will or contest the trust in probate court by claiming that it was improperly executed, that the deceased lacked capacity, or that undue influence played a role. Even then, such challenges can be expensive, time-consuming and often unsuccessful.

Because of these risks, people who want to disinherit family members outside of a spouse should do so carefully with the help of an estate planning attorney. Clear, unambiguous language in the estate documents reduces the chances of conflict. Taking the extra step to explain the decision, either in the will itself or through a separate letter of intent, can also provide clarity for surviving relatives and lessen the chance of a contested estate.

How to Contest a Will or Trust If You’ve Been Disinherited

If your parents left you out of their will or trust, and you believe you have grounds to challenge it, then the first thing you may want to do is talk to an estate planning attorney and your financial advisor. An attorney can advise you as to whether you have legal standing to contest a will. A financial advisor can help you figure out what type of financial documents you need to prove your claim.

You’ll have to go through the probate court to contest a will. The court will schedule a hearing, at which time you’ll be able to present any evidence you have supporting your claim. The court will then review the evidence and make a decision. If you win your case, then you’d be entitled to receive a share of the estate.

Keep in mind that there may be a deadline for contesting a will once the probate process has begun. If you miss this window, then you may not be able to contest a will. Also, be aware of whether your parents’ will includes a no-contest clause. This type of clause automatically inherits anyone who contests the will.

Bottom Line

Two lawyers discuss the legal rights of a disinherited child contesting a will.

Being disinherited by your parents may come as something of a shock. But it’s important to understand what your rights are and what you may be able to do to challenge the terms of their will or trust. And if you plan to disinherit one or more of your children, then it’s also important to know how to do it legally to ensure your wishes are followed once you pass away. Otherwise, the process of determining the fate of your assets will be left to state laws and the probate court.

Estate Planning Tips

  • Consider talking to your financial advisor about drafting a will or building a larger estate plan. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • If you’re married you can’t legally disinherit a spouse. Inheritance laws in every state protect spouses from being disinherited. It may be possible, however, to leave a spouse out of your estate if they forgo their inheritance. This usually means signing some sort of waiver. You might want to do this if you’re married but separated or you’d both prefer to follow a different arrangement for dividing your respective assets. If your spouse is willing to give up their inheritance, it can be helpful to talk to an estate planning attorney to make sure it’s done legally.

Photo credit: ©iStock.com/Blacqbook, ©iStock.com/ProArtWork, ©iStock.com/fizkes