Writing Your Entire Family Out of a Will in New York

Yes, a New York resident can sign a will that leaves nothing to children, parents, siblings, or any other blood relative and gives the whole estate to a friend, a partner, a caregiver, or a charity. The one person who cannot be fully cut out is a surviving spouse, and even that rule has exceptions. The harder question is whether a will that excludes the entire family will hold up once those relatives are served with the probate citation and decide to fight. This page covers both sides: what omitted relatives can do about it, and what a testator should do so the will survives.

Who counts as "family" under New York law

For inheritance purposes, New York does not treat every relative the same. The law cares about distributees: the people who would inherit if there were no will. EPTL 4-1.1 sets the order.

• Spouse and children (issue): a spouse alone takes everything; a spouse with children takes $50,000 plus half, and the children split the rest; children alone take everything.
• Parents: only if there is no spouse and no issue.
• Siblings and their children: only if there is no spouse, issue, or parent.
• Grandparents, aunts, uncles, and first cousins: only if none of the above survive.

This order matters for two reasons. The distributees are the relatives who must be served with notice of the probate proceeding under SCPA 1403, and they are the relatives with standing to object under SCPA 1410. A brother has no claim of any kind if the decedent left a child. A niece has no claim if a parent survives. When people ask about writing out "the entire family," the legally relevant family is usually a short list.

Relatives you can disinherit completely

New York imposes no forced heirship for anyone other than a spouse. Adult children, minor children, parents, siblings, and more distant relatives have no legal right to any portion of the estate. Adopted children are treated the same as biological children (Domestic Relations Law § 117), and non-marital children inherit from a father on the same terms as marital children once paternity is established under EPTL 4-1.2, so they must be excluded with the same care.

Three carve-outs apply even when the will says the children get nothing.

• Exempt property, EPTL 5-3.1: if there is no surviving spouse, children under 21 take certain property off the top regardless of the will: household furniture and appliances up to $20,000, books and family pictures up to $2,500, one motor vehicle up to $25,000, farm animals and equipment up to $20,000, and cash or other personal property up to $25,000.
• After-born children, EPTL 5-3.2: a child born or adopted after the will was signed, who is not mentioned in the will and not provided for by any settlement, may take an intestate share. The statute works in two ways. If the testator had no children when the will was signed, the after-born child takes a full intestate share. If the testator already had children and the will gave them nothing, the after-born child also gets nothing. If the will gave the existing children something, the after-born child shares in that gift. A testator who disinherits all current children and later has another child is protected by the statute, but a childless testator who later has a child is not, unless the will is updated or already mentions future children.
• Grandchildren: disinheriting a child does not disinherit that child's children. If the disinherited child dies before the testator, the grandchildren become distributees in their own right under EPTL 4-1.1. The will should exclude each child "and his or her issue" if that is the intent.

The spouse: a short summary of the elective share

Under EPTL 5-1.1-A, a surviving spouse who is left out of the will may elect to take the greater of $50,000 or one-third of the net estate. The net estate includes probate assets after debts and expenses plus testamentary substitutes: joint accounts and jointly held real property, Totten trust ("in trust for") accounts, transfer-on-death securities, retirement accounts, revocable trust assets, property over which the decedent held a general power of appointment, and gifts made within one year of death above the annual exclusion. Life insurance is not a testamentary substitute. As one brief illustration, a $600,000 probate estate plus $300,000 in a joint account produces a $900,000 base and a $300,000 elective share. Anything the spouse already receives under the will or as a testamentary substitute is credited against that figure.

The spouse must serve a written notice of election on the executor and file it with the Surrogate's Court within six months after letters are issued and no later than two years after death. The court may extend the deadline for reasonable cause under EPTL 5-1.1-A(d), but the extension is not automatic. A surviving spouse also takes the exempt property described above under EPTL 5-3.1, and that property is not counted toward the elective share.

Two planning points follow. First, the elective share reaches most non-probate assets, so moving money into joint accounts or a revocable trust does not defeat it. Second, the cleanest way to exclude a spouse is a written waiver. EPTL 5-1.1-A(e) allows a spouse to waive the right of election before or during the marriage in a signed and acknowledged writing, which is what a properly drafted prenuptial or postnuptial agreement does. For broader drafting questions, see our page on preparing a will in New York.

When a spouse loses the right to elect: EPTL 5-1.2

A surviving spouse is disqualified from the elective share, the exempt property, and an intestate share if any of the following is proven:

• a final judgment of divorce or annulment recognized in New York was in effect at death;
• the marriage was void as incestuous or bigamous;
• the surviving spouse obtained a divorce or annulment outside New York that New York does not recognize;
• a final decree of separation was entered against the surviving spouse (a separation agreement alone does not disqualify);
• the surviving spouse abandoned the decedent, and the abandonment continued until death; or
• the surviving spouse had the duty and the means to support the decedent and failed or refused to do so.

The party asserting disqualification carries the burden of proving it. Abandonment, the ground most often raised by a testator's family against an estranged spouse, requires proof that the spouse left without consent and without justification and never returned. Living apart by mutual agreement is not abandonment.

Leaving everything to a friend, partner, caregiver, or charity

A will that gives the estate to a non-relative is valid in New York. The former statute limiting charitable gifts to half the estate when challenged by a spouse, child, or parent (old EPTL 5-3.3) was repealed in 1981, so a testator may leave everything to charity. See our page on charitable bequests in a New York will.

The practical problem is scrutiny, not legality. When the sole beneficiary is a home health aide, a recent companion, a neighbor who managed the testator's affairs, or anyone in a confidential relationship who helped arrange the will, courts and objecting relatives look hard at how the will came to be. Under Matter of Putnam, 257 N.Y. 140 (1931), a beneficiary who stood in a confidential relationship to the testator and was involved in procuring the will must explain the gift; the inference of undue influence does not shift the ultimate burden of proof, but it can be enough to get the objectant past summary judgment and in front of a jury. Two related traps: a beneficiary who serves as one of the two attesting witnesses forfeits the gift under EPTL 3-3.2 unless two other disinterested witnesses signed, and a will drafted by the beneficiary's own lawyer, paid for by the beneficiary, or signed in the beneficiary's presence invites exactly the inference Putnam describes. We discuss these fact patterns at length on our page about an aunt who left her inheritance to a caretaker.

If you were written out: can you contest?

Omitted relatives often assume they have no rights because the will says so. That is backwards. The will has no legal effect until the Surrogate's Court admits it to probate, and the distributees are entitled to be heard before that happens.

Notice: under SCPA 1403, every distributee must be served with a citation or sign a waiver and consent. A testator cannot keep the excluded family in the dark. If you have been served, you are a distributee and the court recognizes your interest.

Standing: SCPA 1410 permits objections from any person whose interest in the estate would be adversely affected by probate. A distributee who would take more under intestacy has standing. So does a beneficiary under an earlier will that the new will purports to revoke. A relative who would receive nothing under intestacy either (for example, a sibling where the decedent left children) does not.

Grounds: there are four main objections.

• Lack of due execution: EPTL 3-2.1 requires the testator to sign at the end, in the presence of or acknowledged to two attesting witnesses, declare the document to be a will, and have the witnesses sign within 30 days of each other. A will executed under an attorney's supervision carries a presumption of regularity, so this ground is strongest for home-made wills.
• Lack of testamentary capacity: the proponent must show the testator understood the nature and consequences of making a will, the nature and extent of the property, and the natural objects of his or her bounty. Matter of Kumstar, 66 N.Y.2d 691 (1985). Disinheriting everyone is not itself proof of incapacity, but a will that excludes the family without naming them, combined with a diagnosis of dementia near the signing date, is the typical capacity case.
• Undue influence: the objectant must show influence that amounted to moral coercion, overpowering the testator's free will so that the document reflects the beneficiary's wishes rather than the testator's. Matter of Walther, 6 N.Y.2d 49 (1959). The objectant carries the burden, but the Putnam inference applies when a confidential relationship and participation in the will's preparation are shown.
• Fraud: a false statement knowingly made to the testator that caused a different disposition than the testator would otherwise have made. Lies about a child's conduct, told by the beneficiary to secure the estate, fit this ground.

The SCPA 1404 examination: before filing objections, a distributee may examine the attesting witnesses, the attorney who drafted the will, and in some circumstances the nominated executor and proponent. Document discovery is generally limited to three years before the will was signed and two years after, or to the date of death if sooner (22 NYCRR 207.27). The 1404 examination lets an excluded relative test the will before committing to a contest, and it does not trigger an in terrorem clause.

In terrorem clauses, EPTL 3-3.5: New York enforces no-contest clauses, but with statutory safe harbors. A beneficiary does not forfeit a gift by conducting a 1404 examination, objecting to the court's jurisdiction, refusing to join the probate petition, or contesting on the ground of forgery or revocation by a later will if there was probable cause. More to the point here, an in terrorem clause only deters someone who has something to lose. A relative who receives nothing under the will has nothing to forfeit, so the clause is meaningless against a fully disinherited family.

Time and cost: a contested probate usually takes a year or more, and a case that goes through full discovery to trial takes longer. Objectants normally pay their own attorney's fees, though the court has discretion in some circumstances to direct payment from the estate. The proponent's fees defending the will are typically paid by the estate. Our will contest and inheritance dispute pages describe the procedure in more detail.

What happens if the will is denied probate

This is the point that surprises most testators and most families. A will that excludes the whole family has no fallback. If the court denies probate and the decedent signed an earlier valid will, that earlier will can be offered, because a later will that was never valid never revoked it. If there is no earlier will, the estate passes by intestacy under EPTL 4-1.1 to the distributees, which is to say the exact people the decedent tried to exclude. The friend or charity named in the failed will receives nothing from the probate estate. The court will appoint an administrator, usually a distributee, through the process described on our page about administering an estate without a will.

Non-probate assets are different. Beneficiary designations, joint accounts, and a funded revocable trust pass under their own terms and are not affected by the denial of probate, though each can be challenged separately on the same capacity and undue influence grounds, and each remains a testamentary substitute for a surviving spouse's election.

Drafting a will that excludes the family and survives

If you are the testator, the goal is a document that a Surrogate's Court judge can uphold on summary judgment without a trial. The following steps address each of the four objection grounds.

1. Name every person you are excluding. Silence works legally, but it hands an objectant an argument that you forgot your family, which goes to capacity. Language such as "I have intentionally made no provision for my children, [names], or for their issue, for reasons sufficient to me" shows you knew the natural objects of your bounty and chose otherwise. Include a clause covering children born or adopted after the will is signed to close the EPTL 5-3.2 gap.
2. Keep the reasons short and factual, or leave them out. A detailed account of grievances invites a trial on whether the grievances were true and whether someone planted them. A brief statement, or a separate letter kept with the attorney's file, is usually enough. Avoid accusations that could be defamatory.
3. Use an independent attorney. Choose and pay the lawyer yourself. Meet without the beneficiary present. The attorney's notes of a private conversation about your family and your reasons are often the single most useful piece of evidence when the will is later challenged.
4. Execute under attorney supervision with a self-proving affidavit. Supervised execution raises a presumption of due execution, and the SCPA 1406 affidavit lets the court admit the will without live testimony if no one objects. Choose disinterested witnesses; never use the beneficiary.
5. Document capacity when there is any medical history. If you are elderly, ill, or taking medication that affects cognition, a contemporaneous evaluation by a physician or neuropsychologist close to the signing date is far more persuasive than later recollections. Some attorneys also record the execution ceremony; that cuts both ways and should be discussed first.
6. Name alternate beneficiaries and a residuary clause. If your sole beneficiary dies first and the will names no alternate, the residue passes by intestacy to the family you excluded. Every gift needs a backup.
7. Consider a funded revocable trust for the bulk of the assets. A trust is not subject to the SCPA 1403 citation process or the 1404 examination, and a challenge to a trust proceeds as an ordinary lawsuit in which the challenger must build the case without the probate shortcuts. The trust does not defeat a spouse's elective share, and the capacity and undue influence grounds still apply, but the procedural ground is less favorable to the family. See our pages on trusts in New York and avoiding probate.
8. Leave a modest gift if you want a no-contest clause to work. An in terrorem clause has force only against a beneficiary with something to lose. A gift large enough to matter, conditioned on not contesting, can change a relative's math. A gift of nothing cannot.
9. Address the spouse directly. Obtain a signed and acknowledged waiver under EPTL 5-1.1-A(e), or plan the estate on the assumption that the spouse will take one-third of everything including testamentary substitutes.
10. Keep the plan consistent. A will that excludes the family while beneficiary designations, a prior will, and a power of attorney all favor the same family is a will that looks like an aberration. Update the related documents so they tell the same story.

Frequently asked questions

Can I leave everything to a friend and nothing to my family in New York?

Yes, if you have no spouse or your spouse has waived the elective share. Children, parents, and siblings have no right to inherit. The will must still be admitted to probate, and your distributees will be notified and may object, so the drafting and execution steps above matter more than the legal permission.

Can my children contest if I disinherit them?

Children are distributees and have standing under SCPA 1410. They can conduct a 1404 examination and file objections on the grounds of due execution, capacity, undue influence, or fraud. Standing to object is not the same as a right to inherit; if the will was properly made, the objection fails.

Does my spouse still get anything if I write them out?

Yes. A surviving spouse may elect the greater of $50,000 or one-third of the net estate including testamentary substitutes under EPTL 5-1.1-A, plus exempt property under EPTL 5-3.1, unless the spouse signed a valid waiver or is disqualified under EPTL 5-1.2.

If I disinherit all my children and later have another child, does that child inherit?

Under EPTL 5-3.2, an after-born child takes whatever the will gave the children who existed when it was signed. If those children got nothing, the after-born child gets nothing. If you had no children when you signed, an unmentioned after-born child takes an intestate share, so the will should be updated.

Can my parents or siblings contest if I have children?

Generally no. Parents and siblings are distributees only if the decedent left no spouse and no issue. Without a pecuniary interest under intestacy or a prior will, they lack standing under SCPA 1410.

What if the will leaving everything to a non-relative is thrown out?

If there is an earlier valid will, it can be probated. If not, the estate passes by intestacy under EPTL 4-1.1 to the spouse, children, parents, or other relatives in that order. The non-relative receives nothing from the probate estate.

Talk to a New York estate attorney

Disinheriting an entire family is lawful in New York, but it is one of the fact patterns most likely to produce a probate contest, and a failed will sends the estate straight to the excluded relatives. If you are planning such a will, or you have been served with a citation for a will that cuts you out, we can help you evaluate the document and the options. The Law Offices of Albert Goodwin is located in Midtown Manhattan. Call 212-233-1233 or email [email protected] to schedule a consultation.