How to Disinherit Someone in New York: A Step-by-Step Legal Guide

By Albert Goodwin, Esq. — Estate, Trust & Probate Attorney, admitted to practice in New York. Law Offices of Albert Goodwin, with offices in Manhattan, Brooklyn, and Queens.
Last reviewed and updated: June 2024.

Disinheriting someone in New York is not as simple as leaving them out of the will. Whether you succeed depends on who you are trying to disinherit, how you draft the documents, and whether the person you exclude has rights that New York law protects regardless of your wishes. A spouse, for example, cannot ordinarily be cut off entirely; a non-spouse relative usually can. This guide walks through the actual mechanics—the drafting language, the trust funding steps, the waivers, and what happens later in Surrogate's Court—so you can do it in a way that holds up.

To be clear at the outset: in New York you can freely disinherit a child, grandchild, sibling, parent, or more distant relative. You cannot freely disinherit a surviving spouse because of the elective share under EPTL § 5-1.1-A. Everything below follows from that distinction.

What "Disinheriting" Actually Means Under New York Law

An heir is a person who would inherit under New York's intestacy statute, EPTL § 4-1.1, if there were no will. For example, if a decedent dies survived by a spouse and children, the spouse takes the first $50,000 plus one-half of the residue, and the children share the balance. To "disinherit" someone means to draft your estate plan so that an heir who would otherwise inherit receives nothing—or so little that, for practical purposes, they are excluded.

Importantly, disinheritance is about your will and your non-probate transfers working together. Leaving a child out of a will does nothing if your largest asset is a joint bank account that passes by survivorship to that same child. Disinheritance planning therefore has to account for every asset, not just the probate estate.

How to Disinherit a Child or Other Non-Spouse Relative in New York: Step by Step

New York gives children—including adult children and minor children—no forced share. There is no "legitime" or mandatory inheritance for descendants as there is in some civil-law countries. A parent may disinherit a child entirely. The real risk is not the law; it is a will contest brought by the excluded child. The steps below are designed to make the disinheritance both legally valid and contest-resistant.

Step 1 — Use a properly executed will with explicit disinheritance language

Execute a will that complies with EPTL § 3-2.1: signed at the end by the testator, in the presence of (or acknowledged before) two witnesses who sign within 30 days. Do not rely on silence. New York courts read wills carefully, and simply omitting a name can invite arguments that the omission was a mistake or that the testator forgot the child. State the exclusion expressly. A sample clause:

"I have intentionally and with full knowledge made no provision in this Will for my son, [Name], for reasons I consider sufficient. This omission is deliberate and is not the result of accident, mistake, or oversight. Any provision in this Will or in any codicil to it that would otherwise benefit [Name] shall be void."

Some attorneys advise against stating a detailed reason in the will itself, because a stated reason can be challenged as factually false and can hand a contestant something to attack. A neutral statement of intent—as above—is generally safer than a paragraph reciting estrangement or grievances.

Step 2 — Consider leaving a token gift plus an in terrorem (no-contest) clause

An in terrorem clause, authorized and limited by EPTL § 3-3.5, provides that a beneficiary who contests the will forfeits whatever the will leaves them. The strategic problem: a person who receives nothing has nothing to lose by contesting. To give the clause teeth, you must leave the disinherited person enough that forfeiture actually stings—enough that the gamble of a contest is not worth it. A common approach leaves a modest but meaningful bequest conditioned on not challenging the will.

Be aware that EPTL § 3-3.5 carves out "safe harbor" conduct that does not trigger forfeiture, including examining the propounded will, deposing witnesses, and certain preliminary discovery. So an in terrorem clause discourages a full-blown contest but does not bar all inquiry. We discuss this in depth on our will contest resources.

Step 3 — Move assets out of the probate estate where appropriate

Because a disinherited heir's most powerful tool is a Surrogate's Court will contest, reducing what passes through probate reduces the target. A funded revocable living trust is the classic vehicle. As grantor you remain trustee and beneficiary during life, and you name successor trustees and beneficiaries to take after death. Property titled in the trust is not a probate asset, so it does not pass under the will and is not directly subject to a will contest. A disinherited heir is generally not entitled to notice of the trust because, unlike a will admitted to probate, a trust is private. To make this work you must actually fund the trust—retitle real estate, brokerage accounts, and bank accounts into the trust's name. An unfunded trust accomplishes nothing.

Other non-probate tools that bypass the will include beneficiary designations on retirement accounts and life insurance, "transfer on death" securities registrations, and pay-on-death bank accounts. Direct these to the people you do want to inherit.

Step 4 — Build an evidentiary record of capacity and intent

Anticipate the two most common contest grounds—lack of testamentary capacity and undue influence—and document against them. Practical measures attorneys use include: supervising the will execution (attorney-supervised executions carry a presumption of due execution and regularity), recording the date and circumstances of signing, and, where capacity might be questioned, obtaining a contemporaneous physician's note. The cleaner the record, the harder it is for a disinherited heir to prevail.

How to Disinherit a Spouse in New York

A surviving spouse cannot be disinherited at will. Under EPTL § 5-1.1-A, a surviving spouse has a personal right of election to take the greater of $50,000 or one-third of the net estate, even if the will leaves them less or nothing. If a will leaves a spouse $10,000 out of an $80,000 estate, the spouse may elect to take $50,000 instead; the rest is distributed to the remaining beneficiaries.

Crucially, the elective share is calculated against an enlarged base that includes testamentary substitutes under EPTL § 5-1.1-A(b)—gifts made within one year of death or in contemplation of death, Totten trust (in-trust-for) accounts, joint accounts to the extent of the decedent's contribution, joint tenancies and tenancies by the entirety, property over which the decedent held a general power of appointment, retirement accounts, and transfer-on-death securities. This is why you cannot simply re-title assets the day before death to defeat a spouse. You can read more about how the share is computed on our estate litigation pages.

The reliable way: a valid waiver

EPTL § 5-1.1-A(e) allows a spouse to waive or release the right of election in a signed, acknowledged writing—typically a prenuptial or postnuptial agreement. To hold up, the agreement should be entered knowingly and voluntarily, with full financial disclosure, and ideally with each party represented by independent counsel. A waiver that is the product of overreaching or non-disclosure can be set aside, after which the elective share revives. A properly negotiated prenuptial waiver is, in practice, the only dependable way to fully disinherit a New York spouse.

Other situations where the elective share does not apply

• The spouses were divorced, or a final decree of separation was rendered against the surviving spouse;
• The marriage was void or voidable (bigamy, incest, or where a void ceremony occurred);
• The surviving spouse abandoned the decedent, or failed/refused to support the decedent when under a duty to do so (a disqualification under EPTL § 5-1.2).

Reducing—not eliminating—a spouse's share through trusts

Case law shows that careful trust planning can lower the elective-share base, but it is fact-sensitive. In Matter of Lipton, 2020 NY Slip Op 32435(U), where the decedent was a lifetime income beneficiary and discretionary principal beneficiary of a trust, the court included only the actuarial value of the future income the decedent relinquished—not the trust principal—and excluded distributions the trust made to the decedent's children. In Estate of Boyd, 161 Misc. 2d 191 (Surr. Ct. Nassau Co. 1994), life insurance was held not to be a testamentary substitute, while in Matter of Zupa, 48 A.D.3d 1036 (4th Dept. 2008), annuities were treated as testamentary substitutes. The lesson: assets transferred to certain trust structures may fall outside the elective-share computation, but if the decedent retains income rights, that retained value is pulled back in.

Comparison: Four Ways to Disinherit in New York

What a Disinherited Heir Faces in Surrogate's Court

If you disinherit a child by will, that child remains a "necessary party" (a distributee) in the probate proceeding and must be served with citation. That is what triggers their opportunity to contest. In New York City, probate is handled by the Surrogate's Court in each county—New York County (Manhattan), Kings County (Brooklyn), Queens County, Bronx County, and Richmond County (Staten Island). A contestant typically begins with SCPA 1404 examinations, deposing the will's attesting witnesses and the drafting attorney before deciding whether to file formal objections.

Contests are expensive and slow. Litigation costs frequently run into the tens of thousands of dollars and can take well over a year, sometimes several. That cost is precisely why the up-front drafting choices above matter: a clean, attorney-supervised will, a well-funded trust, and (where applicable) a valid spousal waiver dramatically reduce both the odds of a successful challenge and the expense of defending one. For background on the process, see our sample NYC probate timeline.

What to File and Where

You do not file your will during your lifetime; it takes effect at death when your nominated executor petitions for probate in the Surrogate's Court of the county where you were domiciled, using a probate petition and the original will. To make later administration smoother, store the original will safely and tell your executor where it is. Trust documents are not filed with any court and remain private. If you used a prenuptial waiver, keep the original with your estate-planning file so the executor can produce it if the spouse asserts an elective share.

Frequently Asked Questions

Can I disinherit my child in New York?

Yes. New York does not give children any guaranteed share of a parent's estate. The practical concern is a will contest, which good drafting and trust funding can minimize.

Can I completely disinherit my spouse?

Not by will alone. Without a valid prenuptial or postnuptial waiver (or a statutory disqualification such as abandonment or divorce), your spouse can elect to take the greater of $50,000 or one-third of the net estate under EPTL § 5-1.1-A.

Does a revocable trust hide assets from a disinherited heir?

Assets in a funded revocable trust pass outside probate, and a disinherited heir is generally not entitled to notice of the trust. The trust can still be challenged, but it removes those assets from the will contest.

Will an in terrorem clause stop my child from contesting?

It discourages a contest by forcing the child to forfeit a bequest—but only if the bequest is large enough to matter, and subject to the safe-harbor activities permitted by EPTL § 3-3.5.

What if I leave someone out and say nothing?

Silence invites the argument that the omission was an oversight. An explicit disinheritance clause stating that the exclusion is intentional is far stronger.

Speak With a New York Estate Attorney

Disinheriting someone effectively in New York is a drafting and planning problem, not a form to fill out. The difference between a disinheritance that holds and one that collapses in Surrogate's Court usually comes down to how the will, trust, and waivers were prepared. If you are considering excluding a child, spouse, or other relative, the Law Offices of Albert Goodwin can help you structure it to withstand challenge. We have offices in New York City, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].

This article is for general information about New York law and is not legal advice. Reading it does not create an attorney-client relationship. For advice on your specific situation, consult a licensed New York attorney.