Can You Disinherit a Child in New York?

By Albert Goodwin, Esq., New York estate planning and probate attorney. This page covers New York law under the Estates, Powers and Trusts Law (EPTL) and the Surrogate's Court Procedure Act (SCPA).

Yes. New York lets you leave a child out of your will. A child has no legal right to any part of your estate, no matter the child's age, financial situation, or relationship with you. The exclusion has to be done correctly, though, because New York law contains a few rules that can pull a child back into the estate if the will is silent, out of date, or incomplete. This page explains those rules and how to draft around them.

If you want help drafting a will that excludes a child, call us at 212-233-1233 or email [email protected].

Why New York lets you disinherit a child

New York has no forced heirship for children. The only family member with a statutory right to a share of your estate is a surviving spouse. Under EPTL 5-1.1-A, a spouse can elect to take the greater of $50,000 or one-third of the net estate, regardless of what the will says. There is no comparable statute for children. If your will is valid and clearly disposes of your entire estate to other people, your child takes nothing.

The rule changes if you die without a will. Under EPTL 4-1.1, a child is a distributee. If you leave no spouse, your children (and the issue of any deceased child) share the entire estate by representation. If you leave a spouse, the spouse takes the first $50,000 plus half, and your children split the rest. A child who is not in your will inherits nothing; a child who is not in your will because you have no will inherits a full intestate share. For what intestacy looks like in practice, see our page on administering an estate without a will.

The rights a child keeps even when excluded

A disinherited child has no right to a share of the estate, but New York law does give the child four things you should plan around.

• Notice of probate. Under SCPA 1403, every distributee must be served with a citation when the will is offered for probate. Your child is a distributee under EPTL 4-1.1 even if the will leaves the child nothing. The executor cannot skip the child. The child either signs a waiver and consent or is served and given the chance to object.
• The right to examine the witnesses. Under SCPA 1404, a person entitled to be cited may examine the attesting witnesses and the attorney who drafted the will before deciding whether to file objections. The estate pays for this.
• After-born protection. A child born or adopted after you sign the will may take a share under EPTL 5-3.2 unless the will accounts for that child. This is covered in detail below.
• Exempt property for minors. Under EPTL 5-3.1, if you leave no surviving spouse, children under 21 are entitled to certain household property, a vehicle, and cash up to the statutory limits, and this set-off comes off the top of the estate regardless of the will.

One more item is not a statutory right but is often overlooked. If a separation agreement or divorce judgment requires you to maintain life insurance for a child or to leave a child a share of your estate, that obligation is a contract claim. The child can enforce it against your estate even though the will excludes the child. Review any matrimonial agreement before signing a will that cuts a child out.

After-born children under EPTL 5-3.2

EPTL 5-3.2 protects a child born or adopted after the will is signed on the theory that the omission was probably an oversight. The statute applies only if the after-born child is (1) not provided for by any settlement outside the will, such as a trust or life insurance, and (2) neither provided for nor in any way mentioned in the will. If either condition fails, the statute does not apply and the after-born child takes nothing.

If the statute does apply, what the after-born child receives depends on your family when you signed the will:

• You had other children and left them nothing. The after-born child also takes nothing. The law assumes you would have treated the new child the same way.
• You had other children and left them something. The after-born child shares in the gifts made to those children. The after-born child's portion is carved out of the other children's gifts, which are reduced proportionally, and the statute limits the after-born child's recovery to what was left to the other children.
• You had no children when you signed. The after-born child takes a full intestate share under EPTL 4-1.1, which is taken from the entire estate.

Two drafting points follow. First, if you want to exclude any future child, the will should say so in words that mention after-born and after-adopted children as a class, so that the "in any way mentioned" condition is met. Second, a general gift "to my children" is a class gift, and a child born later is a member of that class and takes a share under the will itself, before EPTL 5-3.2 ever comes into play. If you have a child after signing and your intent is to exclude that child, the safest course is to sign a new will or codicil that names the child and states the exclusion.

How to word the disinheritance clause

The will should name the child and state that you intentionally make no provision for that child. Vague language, or simple silence, invites an argument that you forgot. Beyond that, the clause should answer three questions the Surrogate's Court will otherwise have to answer for you.

Should the clause state your reasons?

Usually not. A stated reason adds nothing to the legal effect of the exclusion, and it creates risk. If the stated reason is factually wrong, the child can use it to argue that you acted under an insane delusion, which is a form of incapacity. If the reason accuses the child of misconduct, the child may have a claim against the estate for publishing a defamatory statement in a public court file. If you want your reasons recorded, put them in a separate letter kept with your attorney's file. That letter can be produced if the will is contested, without becoming part of the will.

Should you leave the child one dollar?

No. The one-dollar bequest is a holdover from other states and from an older rule that no longer applies. In New York, a child who is left nothing is already entitled to notice of probate as a distributee, so a token gift does not change the child's standing. It does create work. The executor must pay the dollar and obtain a receipt and release before the estate can be settled, and an uncooperative child can delay closing by refusing to sign. Leave the child nothing, or leave the child enough to make a no-contest clause meaningful (see below).

What about the child's own children?

Disinheriting a child does not disinherit that child's children. If your will leaves the residue "to my issue by representation" (the default under EPTL 1-2.16 and 2-1.2), or if the disinherited child is named elsewhere in the will and predeceases you, the anti-lapse statute (EPTL 3-3.3) may carry a gift down to the grandchildren. Decide whether you want the grandchildren included and say so. If you do not, the clause should state that neither the child nor the child's issue takes under the will, or that the child is deemed to have predeceased you without issue for all purposes of the will.

The partial intestacy trap

New York does not recognize a "negative will." Words of disinheritance control only property that the will actually disposes of. If any property falls outside the will, because a gift lapses, a beneficiary dies and no alternate is named, or the residuary clause fails, that property passes by intestacy under EPTL 4-1.1, and the disinherited child takes an intestate share of it despite the exclusion clause.

To close this gap, the will needs a residuary clause that disposes of everything not otherwise given, with alternate beneficiaries named at each level, ending with a final taker who is certain to exist (a charity is common). The exclusion clause should also state that the child is excluded from any property that would otherwise pass by intestacy. That language is not binding under New York law on its own, but it supports the reading that any ambiguity in the will should be resolved against the child.

No-contest (in terrorem) clauses under EPTL 3-3.5

An in terrorem clause states that a beneficiary who contests the will forfeits whatever the will gives them. New York enforces these clauses under EPTL 3-3.5, with exceptions written into the statute.

The clause is only useful if the child has something to lose. A child who is left nothing cannot be penalized for contesting, because there is no gift to forfeit. The practical use of the clause is therefore to leave the child a gift large enough that walking away from it hurts, in exchange for discouraging a contest that could cost the estate far more. The right size depends on the estate and on how likely the child is to litigate.

EPTL 3-3.5 lists conduct that does not trigger forfeiture even when the clause says otherwise:

• A contest based on forgery, or on the ground that the will was revoked by a later will, if the contest is based on probable cause.
• Disclosure to the court or the parties of information relating to any document offered for probate.
• Refusing to join in the petition for probate.
• Conducting the preliminary examination under SCPA 1404 of the attesting witnesses, the person who drafted the will, the nominated executors, and the proponents.
• Objecting to the court's jurisdiction.
• Conduct by a guardian on behalf of a minor or an incapacitated beneficiary.

The SCPA 1404 safe harbor matters most. A child can depose the witnesses and the drafting attorney, read the file, and then decide whether to object, all without risking the gift. Only filing objections to probate triggers the clause. For this reason the will should be drafted and executed so that a 1404 examination gives the child nothing to work with.

Alternatives to cutting the child out entirely

Most parents who ask this question are not trying to punish a child. They are trying to protect the estate, protect the child, or protect other beneficiaries. Each goal has a drafting answer that may serve you better than outright exclusion.

• Estranged child. Full exclusion with a clear clause, a complete residuary scheme, and attorney-supervised execution. Consider a modest gift paired with an in terrorem clause if you expect a contest.
• Child with addiction or poor money judgment. A fully discretionary trust lets a trustee you choose pay for housing, treatment, and necessities without ever handing the child a lump sum. The child's creditors cannot reach the trust while the trustee holds the funds. This is often a better outcome than disinheritance, which may simply send the child to a sibling for money.
• Child receiving Medicaid or SSI. A supplemental needs trust under EPTL 7-1.12 preserves the child's benefits while allowing the trust to pay for things the benefits do not cover. An outright inheritance would disqualify the child; disinheritance leaves the child with nothing. See the benefits of a special needs trust.
• Child already provided for. If you gave one child a business, a home, or a large lifetime gift, the will can say that the child has already received their share and is excluded for that reason. This is one of the few situations where stating the reason helps, because it rebuts the argument that the omission was an oversight and it is a reason the child cannot easily dispute.
• Stepchildren. A stepchild you have not adopted is not a distributee under EPTL 4-1.1. You do not need to exclude a stepchild, and the stepchild is not entitled to notice of probate. If you want a stepchild to inherit, you must name the stepchild, because a gift "to my children" will not include them.
• Adopted-out children. Under Domestic Relations Law 117, a child adopted by another family generally loses the right to inherit from the birth parents, with exceptions for adoption by a stepparent or other relative. Confirm the child's status before deciding whether an exclusion clause is needed.

For a comparison of trusts created during life and trusts created under a will, see the advantages and disadvantages of a testamentary trust.

Using a revocable trust and beneficiary designations

Property that passes outside the will never goes through probate, and the SCPA 1403 citation requirement applies only to the probate proceeding. If your estate is funded into a revocable trust, held jointly with right of survivorship, or payable to named beneficiaries (retirement accounts, life insurance, Totten trust bank accounts under EPTL 7-5.1, and transfer-on-death securities registrations under EPTL 13-4.1), your child receives no citation and no automatic right to a 1404 examination.

This does not make the plan unchallengeable. A child can sue to set aside a trust or a beneficiary designation on the same grounds as a will: lack of capacity, undue influence, fraud. But the child must find the asset, bring a separate proceeding, and carry the burden without the procedural head start that probate provides. For many parents that is reason enough to move the bulk of the estate into a revocable trust and leave the will as a pour-over backstop. See how to avoid probate in New York, the benefits of a living trust, and which assets can go into a revocable trust.

Two cautions. A pour-over will is still a will and still has to be probated if any asset is left in your name, and your child must still be cited in that proceeding. And a revocable trust does not defeat a spouse's elective share, because EPTL 5-1.1-A counts testamentary substitutes as part of the net estate.

Executing the will so it holds up

A disinheritance clause is only as good as the will it sits in. New York's execution requirements are in EPTL 3-2.1: a signature at the end, two attesting witnesses who sign within thirty days of each other, and a declaration by you to the witnesses that the document is your will. When an attorney supervises execution, the court applies a presumption that the formalities were followed. A self-proving affidavit under SCPA 1406, signed by the witnesses at the time of execution, allows the will to be admitted without live testimony if no one objects.

Because the excluded child will likely conduct a 1404 examination, the drafting attorney's file should show that you gave the instructions, that you understood the natural objects of your bounty and the nature of your property, and that the decision to exclude the child was yours. If you take medication that affects cognition or have a diagnosis that touches on memory or judgment, tell your attorney. A contemporaneous letter from your physician, or a short capacity evaluation, is far cheaper than a will contest.

The grounds on which a child can object, how the 1404 process works, and what a contest costs are covered on our will contest page and our page on inheritance disputes. For a general overview of will drafting, see our will attorney page. For the timeline of a probate proceeding in which a child has been cited, see a sample New York probate timeline.

Frequently asked questions

Can I disinherit an adult child in New York?

Yes. Age makes no difference to a child's lack of a forced share. The only age-based rule is EPTL 5-3.1, which gives children under 21 a right to exempt property when there is no surviving spouse.

Does my disinherited child have to be notified when I die?

Yes, if there is a probate proceeding. SCPA 1403 requires that every distributee be cited, and a child is a distributee under EPTL 4-1.1 regardless of the will. Assets held in trust or passing by beneficiary designation do not trigger this requirement.

Do I have to leave my child $1?

No. New York does not require a nominal bequest. A token gift adds administrative steps and does not improve the will's chance of surviving a contest.

What if I have another child after signing my will?

EPTL 5-3.2 may give that child a share unless the will mentions after-born children or the child is provided for by a settlement outside the will. Sign a new will or codicil after any birth or adoption.

Will a no-contest clause stop my child from contesting?

Only if the child is left a gift worth forfeiting. A child who receives nothing has nothing to lose. EPTL 3-3.5 also allows the child to conduct a SCPA 1404 examination without triggering the clause.

Can I disinherit my child but leave something to my grandchildren?

Yes. Name the grandchildren or define the class clearly, and state that the excluded child is not to take as a representative of, or through, those grandchildren.

Speak with a New York estate attorney

Excluding a child is lawful in New York, but the will has to be drafted with the after-born statute, the partial intestacy rule, the citation requirement, and the likelihood of a 1404 examination in mind. The Law Offices of Albert Goodwin drafts wills and trusts for parents in Manhattan, Brooklyn, Queens, and across New York State. Call 212-233-1233 or email [email protected] to discuss your situation.