In general, you are able to leave your estate to whomever you please in your will. So you can cut a person out of your will with relative ease. Many times, when estate planning with the help of a New York estate attorney, you may want to leave out a child or spouse, for reasons ranging from a family dispute all the way to having already set up a trust or made a gift to a family member. There are many myths out there when it comes to setting up a will, especially when it comes to disinheriting someone.
One thing to keep in mind is that disinheriting a spouse can be very difficult, if not impossible, if the way you are trying to do so is through your Will. A spouse is entitled to their spousal share, meaning that regardless of what the will says, he or she is entitled to either $50,000 or 1/3 of the estate, whichever is larger. It does not matter what the will says when it comes to disinheriting your spouse, they would still be entitled to this share. However, a spouse can give up his or her spousal share in a pre-nuptial or post-nuptial agreement before you die. This can be quite common in cases where one spouse wants their entire estate to go to their children. Read more about how prenuptial agreements and postnuptial agreements are used in estate planning.
However, besides spouses, you can leave your estate to whomever you please, even to the point of disinheriting children. Children, friends or other family members are not entitled to anything in a will, meaning that you are within your rights to write them out of that will. However, it is advisable when you are specifically leaving a child out of your will that you use a New York estate lawyer to be sure that the will is properly drafted so that you can avoid the will be contested after you die.
While there isn’t any necessary language for disinheriting anyone, there are some things that must be kept in mind when coming up with such an estate plan. One important thing is that you should specifically mention the person you are disinheriting and that you are disinheriting them on purpose. This leaves out any ambiguity that you may have forgotten this person when coming up with your estate plan. What you should probably not do here is mention reasons for why you are disinheriting this person. It could open your will up to being contested.
Another option to disinherit someone is to give that person a relatively small amount and put a clause in the Will that they would not be entitled to anything if they were to contest the Will. This is something that does not work in some States, but does work in New York. Here is more information about this No-Contest clause or In Terrorem clause.
If there is a possibility that someone is going to contest your will after your death, then it’s best to not just do any Will, but to develop and execute a defensive estate plan with an attorney who is familiar with both estate planning and estate litigation. This is true even if you have a medical condition and there are questions about your capacity. Read more about avoiding will challenges and defensive estate planning.
When it comes to not including someone in your will, speaking with a New York estate attorney is key. An attorney is the best person to make sure that your will is drafted in a way where all the necessary language is there to make sure your wishes are met.