Disinheriting a Child in New York: What the Law Allows and How to Do It Correctly

New York law allows a parent to leave a child nothing. The law does not treat a daughter differently from a son, and it does not ask why the parent made that choice. What the law does require is a will or trust that is properly executed by a person with capacity, free of undue influence, and drafted so that the omission cannot be explained away as a mistake. This guide covers the New York statutes that apply, how to word the disinheritance, how the disinherited child will find out and what she or he can do about it, and what a parent can do now to make the plan hold up in Surrogate's Court.

Written by Albert Goodwin, an estate attorney practicing in New York. This page covers New York law only. Other states, including those with forced-heirship rules, work differently.

Can a parent disinherit a child in New York?

Yes. A child has no statutory right to a share of a parent's estate if the parent leaves a valid will or trust that excludes the child. The rules that give children a share, found in EPTL 4-1.1, apply only when a person dies without a will (intestate). A valid will displaces them.

Compare the position of a surviving spouse. Under EPTL 5-1.1-A, a spouse who is cut out of a will may elect to take the greater of $50,000 or one-third of the net estate, and the election reaches many non-probate assets such as joint accounts and revocable trusts. New York gives children no equivalent elective share. A disinherited son or daughter cannot force a minimum inheritance the way a spouse can.

The sex of the child is irrelevant under the EPTL and the SCPA. Every rule described below applies the same way to a daughter and to a son.

Two narrow exceptions to keep in mind

• After-born children (EPTL 5-3.2): A child born or adopted after the will was signed, who is not provided for by any settlement and is neither provided for nor mentioned in the will, takes a share of the estate. If the will provides for other children, the after-born child shares in what they receive. If the will provides for no children, the after-born child takes an intestate share. This exception is defeated by mentioning the child or the class of children in the will, which is why careful drafting matters even for a child the parent intends to exclude.
• Exempt property for minor children (EPTL 5-3.1): If there is no surviving spouse, children under 21 take certain items off the top of the estate regardless of the will, including household furniture and effects, a vehicle and up to $25,000 in cash or other property, within the statutory limits. This is a small, fixed set-aside. It does not give the child a share of the balance of the estate.

Outside these two provisions, a parent in New York is free to leave an adult or minor child nothing.

Does the parent need a reason?

No. New York does not require a parent to justify the omission, and the Surrogate's Court will not weigh whether the reason was fair. A will that excludes a child because of estrangement, because the child is financially secure, because the child already received substantial lifetime gifts, or for no stated reason at all, is equally valid. The reason becomes relevant only in a contest, where the objecting child will try to show that the omission was the product of someone else's influence or of a confused mind rather than the parent's own decision. A reason that is documented in the parent's own words, at the time the will was signed, helps answer that argument. The reason itself does not need to satisfy anyone.

How to draft the disinheritance

Name the child and state the intent

Silence is the weakest approach. A will that simply never mentions a child invites the argument that the parent forgot, or that the omission was a drafting error, and it leaves the EPTL 5-3.2 after-born question open if the child's birth date is close to the date of the will. Name the child and state that the omission is deliberate. Typical language:

"I have intentionally made no provision in this Will for my daughter, [full name], or for her descendants, for reasons known to her and to me. This omission is not the result of accident or mistake."

If the parent wants the child's own children to inherit, the clause should say so, because the phrase "or her descendants" would otherwise cut off the grandchildren as well. If the parent wants to exclude any child born or adopted later, add class language such as "any child of mine born or adopted after the date of this Will."

The one-dollar bequest

Leaving a disinherited child one dollar is a common instinct and is not required in New York. An express statement of intent does the same work. A nominal bequest has a practical downside: it makes the child a beneficiary who must be accounted to and who may need to sign a receipt and release before the estate can close. If the parent uses a no-contest clause, however, the child must be left something meaningful enough to lose, or the clause has no effect on her.

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

New York enforces no-contest clauses. Under EPTL 3-3.5(b)(1), a condition that forfeits a beneficiary's gift if she contests the will is operative whether or not she had probable cause to contest. The clause therefore works only against a child who receives a bequest she does not want to risk. A child who receives nothing has nothing to forfeit, and the clause does not deter her.

The statute also carves out conduct that does not trigger forfeiture. A beneficiary may, without losing her gift:

• contest the will on the ground that it is a forgery or was revoked by a later will, if the contest is based on probable cause (EPTL 3-3.5(b)(1)(A));
• object to the jurisdiction of the court (EPTL 3-3.5(b)(3)(A));
• disclose information to the court or other parties about the will or the probate proceeding (EPTL 3-3.5(b)(3)(B));
• refuse to join the probate petition or to sign a waiver and consent (EPTL 3-3.5(b)(3)(C));
• conduct the preliminary examinations permitted by SCPA 1404 of the attesting witnesses, the drafter, the nominated executors and the proponents (EPTL 3-3.5(b)(3)(D)); and
• bring or join a proceeding to construe the will (EPTL 3-3.5(b)(3)(E)).

A minor or incompetent beneficiary may oppose probate without forfeiture (EPTL 3-3.5(b)(2)). The result is that a parent who wants a no-contest clause to carry weight should leave the child a bequest large enough that she would rather keep it than gamble on a contest, and should expect that the child can still take the SCPA 1404 examinations before deciding.

A letter of explanation

A separate signed letter, kept with the will, can explain the parent's thinking in plain language. It is not part of the will and does not control distribution, but it is evidence of the parent's state of mind at the time. Keep the letter factual and free of accusations. A letter that reads as angry or confused can be used by the objecting child to argue that the parent was not thinking clearly or was repeating what someone else told her.

Using a revocable trust instead of a will

Assets held in a revocable trust pass under the trust terms and do not go through probate. A lifetime trust in New York must be in writing and either acknowledged like a deed or signed in the presence of two witnesses (EPTL 7-1.17). Because there is no probate, there is no citation to the disinherited child under SCPA 1403 and no SCPA 1404 examination as of right. The child must learn of the trust and start her own proceeding to set it aside, which is harder and more expensive. A trust can still be challenged for lack of capacity, undue influence or fraud, so the trust does not make the exclusion unchallengeable. It does remove the automatic notice and the built-in discovery that a will contest provides. See avoiding probate in New York and trust drafting for more on this approach.

Alternatives to a full disinheritance

A parent whose concern is a child's creditors, a pending divorce, substance abuse or inability to manage money often does not need to disinherit the child. A discretionary trust with an independent trustee keeps the inheritance away from the child's spouse and creditors while still providing for her. For a child with a disability who receives means-tested benefits, a supplemental needs trust under EPTL 7-1.12 preserves eligibility. These structures are harder to attack than a bare exclusion because the parent's intent is to protect the child, and the child has less incentive to litigate.

Making the will hold up against a contest

A disinherited child who wants to overturn the will must prove one of the recognized grounds: lack of testamentary capacity, undue influence, fraud, duress, forgery or improper execution. The parent cannot prevent the child from objecting, but the parent can build the record that defeats the objection.

Capacity

The New York standard is modest. The testator must understand the nature and consequences of making a will, know the nature and extent of her property, and know the natural objects of her bounty and her relations with them (Matter of Kumstar, 66 N.Y.2d 691 (1985)). Capacity is measured at the moment of execution. A diagnosis of dementia does not by itself defeat capacity, but it makes the contest more likely. Steps that help:

• a contemporaneous letter from the treating physician addressing the Kumstar elements, dated close to the signing;
• the drafting attorney's own notes of what the testator said about her family and assets, in her words;
• a will that is internally consistent with earlier wills or with the parent's lifetime pattern, or a clear note explaining why it changed.

Undue influence

Undue influence means influence that amounts to moral coercion, which restrained independent action and destroyed free agency (Matter of Walther, 6 N.Y.2d 49 (1959)). It is almost always proven circumstantially: the testator's dependence on the favored person, that person's opportunity and motive, isolation of the testator from the excluded child, and that person's involvement in arranging the will. The defense is built the same way:

• the parent retains and meets with her own attorney, alone, without the favored child in the room or on the phone;
• the attorney, not a family member, communicates with the parent about the will;
• the favored child does not pay the attorney's fee or drive the parent to the signing if that can be avoided;
• the attorney documents that the parent, unprompted, identified the excluded child and gave the reason for the exclusion;
• where the parent and the favored beneficiary are in a confidential relationship, such as caregiver and dependent, the attorney records the steps taken to confirm the parent's independent judgment.

Due execution

EPTL 3-2.1 requires that the will be signed at the end by the testator, that she sign or acknowledge her signature in the presence of each of two attesting witnesses, that she declare the document to be her will, and that the witnesses sign within 30 days of each other. When an attorney supervises the signing, New York courts apply a presumption of regularity (Matter of Collins, 60 N.Y.2d 466 (1983)). A self-proving affidavit signed by the witnesses under SCPA 1406 allows the will to be admitted without their live testimony if there is no contest. Video recording the execution is optional. It helps when the testator is alert and articulate; it can hurt when she is frail, so the attorney should decide case by case.

Signing a series of consistent wills over several years, each with the same exclusion, is one of the strongest defenses available. A child who overturns the latest will then faces an earlier will that excludes her as well.

What happens in probate when a child is disinherited

The disinherited child must be cited (SCPA 1403)

A parent cannot keep the exclusion secret through probate. SCPA 1403 requires that process be served on the decedent's distributees, meaning the people who would inherit under EPTL 4-1.1 if there were no will. A child is a distributee whether or not the will names her. The executor must either obtain the child's signed waiver and consent or serve her with a citation that states the return date in Surrogate's Court. The child also has the right to a copy of the will. Probate cannot proceed until every distributee has been served or has waived.

SCPA 1404 examinations

Before deciding whether to file objections, the disinherited child may examine the attesting witnesses, the attorney who drafted the will, the nominated executors and the proponents under oath (SCPA 1404(4)). She may also demand production of the attorney's file. These examinations are limited by the Uniform Rules for Surrogate's Court, 22 NYCRR 207.27, to the period beginning three years before the date of the will and ending two years after it or at the date of death, whichever is shorter, unless special circumstances are shown. The examinations do not trigger a no-contest clause (EPTL 3-3.5(b)(3)(D)). Many contests end at this stage, because the examinations show the child that the record is clean, or show the executor that it is not.

Standing to object (SCPA 1410)

Any person whose interest in the estate would be adversely affected by admitting the will to probate may file objections. A disinherited child qualifies because she would take a share under EPTL 4-1.1 if the will were denied probate. If an earlier will also excludes her, the proponent may argue that her interest is not adversely affected by the later will, and the court may require her to address both instruments.

Deadlines, discovery and trial

Objections are due by the return date of the citation unless the court extends the time. When SCPA 1404 examinations are held, the court sets the deadline after they are completed, and objections are commonly due within a short period after the last examination. Once objections are filed, the matter becomes a contested proceeding with full discovery under the CPLR, including depositions, document demands and medical records. The objecting child is entitled to a jury on the issues of capacity, undue influence and fraud. Most contested probates settle before trial. The timeline for a contested estate is usually measured in years rather than months; see a sample New York probate timeline for the uncontested baseline.

If you are the disinherited son or daughter

Many people reading this page are not the parent. If a parent has died and you have learned that you were left out, the process above runs in your favor in several respects.

• You will receive notice. If the estate is being probated, you must be served with a citation under SCPA 1403. Do not sign a waiver and consent until an attorney has reviewed the will and the circumstances. Signing the waiver gives up your right to object.
• You can investigate before committing. The SCPA 1404 examinations and the demand for the drafting attorney's file let you see the evidence before you file objections or spend money on a full contest.
• You need a legal ground, not a grievance. The court will not set aside a will because the exclusion was unfair or because a sibling received more. You must show lack of capacity, undue influence, fraud, duress, forgery or defective execution. An attorney-supervised will with a self-proving affidavit, consistent prior wills and a physician's letter is difficult to overturn. A will signed shortly before death, drafted at the direction of the sole beneficiary, by an attorney the parent had never used, with no prior consistent will, is a different matter.
• If there is no will, you inherit. If the parent died intestate, EPTL 4-1.1 gives the children the estate after the spouse's $50,000 and one-half share, or the entire estate if there is no spouse. A parent cannot disinherit a child by doing nothing.
• If assets passed by trust or beneficiary designation, there may be no probate and no citation. You can still bring a proceeding in Surrogate's Court or Supreme Court to set aside the trust or designation on the same grounds, but you must find out about it and act on your own initiative.

Realistic outcomes range from a negotiated settlement, in which the objecting child receives a share in exchange for withdrawing objections, to denial of probate and intestate distribution, to dismissal of the objections with the child receiving nothing. The strength of the record built at the time of signing usually decides which of these happens. For the elements and strategy of an objection, see how to win a will contest in New York and will contest representation.

Frequently asked questions

Is there any difference between disinheriting a daughter and disinheriting a son in New York?

No. The EPTL and SCPA refer to "children" and "issue" without regard to sex. Every rule on this page applies identically to a daughter and to a son.

Can I disinherit a minor child?

Yes, subject to the exempt property set-aside in EPTL 5-3.1 if there is no surviving spouse. A minor's objections to probate would be brought through a guardian ad litem appointed by the court, and a minor cannot be penalized by a no-contest clause (EPTL 3-3.5(b)(2)).

Does a disinherited child have a right to see the will?

Once the will is filed for probate, it is a public court record and the child, as a cited distributee, is entitled to a copy. Before the parent's death, the will is private and the child has no right to see it.

Does disinheriting a child also cut off my grandchildren?

Only if the will says so. If a disinherited child predeceases the parent, New York's anti-lapse rule (EPTL 3-3.3) does not apply because there is no gift to lapse, but a general residuary clause in favor of "my issue" or "my descendants" may bring the grandchildren back in. State the intent about grandchildren expressly.

Can I change my mind later?

Yes. A will can be revoked or replaced at any time while the parent has capacity (EPTL 3-4.1). A new will that restores the child should expressly revoke the earlier one.

Talk to a New York estate attorney

If you are a parent planning to exclude a child, the drafting and the record you build now determine whether the plan survives. If you are a child who has been excluded, the citation and the SCPA 1404 process give you a window to evaluate the will before deciding whether to object. Albert Goodwin is an estate attorney in New York who handles will drafting and inheritance disputes in Surrogate's Court. You can call 212-233-1233 to discuss your situation.

Attorney Advertising. This page is general information about New York law and is not legal advice for any particular situation. Prior results do not guarantee a similar outcome.