Mr. Goodwin is everything you want in an attorney: professional, honest, thorough, and genuinely caring. He always explains things clearly, so I understood exactly what was happening and what to expect next. His attention to detail and persistence really stood out. Looking back, I feel lucky to have found him. He guided me through the whole process expertly, and I deeply appreciate all his hard work. Would definitely recommend him to anyone needing legal help.
Call Today:
212-233-1233
Disinheriting a Child in New York: The Legal Mechanics and Limits
In New York you generally do not need any legal grounds to disinherit a child, and you do not have to explain your reasons in the will. Unlike a handful of jurisdictions, New York has no forced-heirship statute that guarantees an adult child a share of a parent’s estate. What follows explains how disinheritance actually works under New York law, the two limits the law does impose, and the grounds on which a disinherited child can challenge the will.
New York Does Not Require Grounds to Disinherit an Adult Child
A competent adult has broad freedom to dispose of property by will. Nothing in the Estates, Powers and Trusts Law (EPTL) compels a parent to leave anything to an adult child. You may leave your estate to other children, to a spouse, to charity or to anyone else, and an adult child has no statutory right to a fixed share.
Because no grounds are required, the practical question is not whether you are permitted to disinherit a child but how to do it so the will withstands a challenge in Surrogate’s Court.
The Two Limits Under New York Law
A spouse cannot be disinherited: the right of election (EPTL 5-1.1-A)
While children can be disinherited, a surviving spouse generally cannot. Under EPTL 5-1.1-A a surviving spouse has a “right of election” to take the greater of $50,000 or one-third of the net estate, regardless of what the will says. This matters in disinheritance planning because the elective share is calculated against the augmented estate, which can include certain non-probate “testamentary substitutes” such as joint accounts, payable-on-death accounts and some lifetime transfers. If your plan is built around redirecting assets away from one beneficiary, the spousal election can change the math.
The pretermitted-child rule (EPTL 5-3.2)
EPTL 5-3.2 protects a child who is born or adopted after the will is executed and who is neither provided for nor mentioned in it. In certain circumstances such an “after-born” child may take a share as if the parent had died without a will. The statute does not protect a child who was already alive when the will was signed, so an existing child you intentionally leave out is not “pretermitted” and is not entitled to a share. The lesson is to review and update your will after the birth or adoption of any new child so that your intentions, in either direction, are clear.
How to Disinherit a Child Effectively
Doing it correctly is a matter of clarity and a defensible record.
Say it expressly
Name the child and state plainly that you intend to leave them nothing. Silence can be read as an oversight; an express statement removes the ambiguity and undercuts a later claim that the omission was a mistake.
Close every intestacy gap
Include a residuary clause that disposes of the entire estate. If any part of the estate passes by intestacy because the will fails to cover it, the disinherited child can inherit that part under EPTL 4-1.1, defeating your intent.
Consider a no-contest clause
Under EPTL 3-3.5 a will may include an in terrorem clause that forfeits a beneficiary’s gift if that beneficiary challenges the will. These clauses are enforceable in New York but are construed narrowly, and EPTL 3-3.5 carves out safe-harbor exceptions, for example the preliminary examinations under SCPA 1404 and certain filings, that a contestant may pursue without triggering forfeiture. A no-contest clause only deters a beneficiary who actually receives something they could lose, so it is often paired with a modest bequest rather than a total disinheritance.
Use a trust where outright disinheritance is not really the goal
Many parents do not truly want to disinherit a child; they want to control how and when the child receives assets, because the child has creditor exposure, a pending divorce, a spendthrift pattern or substance-use concerns. A trust with a third-party trustee can hold the assets and distribute them on the parent’s terms rather than handing them over outright. See our pages on trusts in New York and the benefits of a special needs trust.
Protect a disabled child’s benefits
If a child relies on Medicaid or SSI, leaving them money outright can disqualify them. A properly drafted supplemental (special) needs trust preserves eligibility while supplementing the child’s care.
Make the execution airtight
A New York will must be executed in accordance with EPTL 3-2.1: signed at the end by the testator, in the presence of at least two witnesses, who attest within roughly a 30-day period. A self-proving affidavit simplifies later probate. Careful execution is the single best defense against a challenge.
How a Disinherited Child Can Challenge the Will
This is the heart of most disputes. A disinherited child cannot win simply because they were left out; they must establish a legal ground to invalidate the will or a provision of it. The grounds New York recognizes are these.
| Ground | What the challenger must show |
|---|---|
| Lack of testamentary capacity | That at the moment of execution the testator did not understand the nature of making a will, the nature and extent of their property, and the natural objects of their bounty (their family). Capacity is judged as of the moment of execution. |
| Undue influence | That someone exerted such pressure that the will reflects the influencer’s wishes rather than the testator’s free will. Courts look at motive, opportunity and the actual exercise of influence, and scrutinize a confidential relationship combined with active involvement in procuring the will. |
| Fraud | A false statement that deceived the testator into making or changing the will. |
| Improper execution | Failure to meet the formalities of EPTL 3-2.1: signature, witnesses, attestation. |
| Duress or forgery | That the will was procured by threat, or that the instrument is forged. Either makes it invalid. |
Will contests proceed in Surrogate’s Court, often beginning with discovery and pre-objection examinations of the attesting witnesses and the drafter under SCPA 1404. Our page on contesting a will in New York describes that process.
When Disinheritance Makes Sense, and When a Trust Is Better
Parents have many personal reasons for revising who inherits: one child already received substantial lifetime gifts, another has greater need, or the parent wants to keep assets out of the reach of a child’s creditors or a divorcing spouse. None of those reasons need to be stated in the will. But in many of these situations outright disinheritance is a blunt tool. A carefully structured trust can accomplish the underlying goal, whether that is controlling timing, protecting against creditors or preserving public-benefit eligibility, while avoiding the bitterness and litigation that a total disinheritance can invite.
Talk to Us
Whether you want to disinherit a child in a way that holds up, or you are a child who believes you were wrongly cut out of a will, the details of the EPTL and Surrogate’s Court procedure matter. We handle estate planning and will contests in the Surrogate’s Courts of New York, Kings, Queens, Bronx, Richmond, Nassau, Suffolk and Westchester counties. Call 212-233-1233 or write to [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
