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Legal Rights of a Disinherited Child

Legal Rights of a Disinherited Child

Family relationships are often complex and problems or issues involving money and property may further complicate things. This is especially true in the case of family inheritance. Circumstances may arise where a child finds themselves in a position where they appear to be disinherited. In those situation, legal rights of a disinherited child come into play.

Disinheritance of a child is a thorny subject in the context of family relations. Once you reach this point, it is almost unavoidable and necessary for you to assert and protect your interests in court. Thus, as a disinherited child, it is very important for you to know your legal rights.

Reasons for disinheritance

There are many reasons behind why a parent would decide to disinherit a child. Sometimes the disinheritance might have something to do with the overall relationship of the child with the parent. The parent, for example, might have felt estranged from the child and vice versa.

Other times, it can be more complicated than that and may involve situations wherein the parent was unduly influenced or defrauded into disinheriting the child in a will.

Whatever the reason is, a child who has been disinherited by a parent has certain legal rights that may be enforced in court in order to protect their own interests in the estate.

Right of a disinherited child to explore bringing a will contest

Before engaging into full-blown litigation, you might also want to gather the necessary information first before contesting the will. This is a pre-litigation probe of the circumstances surrounding the execution of the will. This process is authorized under Section 1404 of the Surrogate’s Court Procedure Act (SCPA §1404).

Under the said law, a disinherited child who is looking to contest a will has the legal right to examine the witnesses to the will or the attorney who drafted it. This is usually conducted in the form of depositions. The disinherited child may also request for financial or medical records as part of the discovery process.

Note that the time when you conduct your §1404 examination is also important as this will determine who would pay for the costs of the deposition. Generally, you should seek to conduct your deposition before formal objections are filed against the will so that the estate will have to bear the costs of examination. The timing of your examination under SCPA §1404 is something that you should consult with an experienced will contest lawyer in New York.

Right of a disinherited child to contest a will

Unlike the surviving spouse who has the right to an “elective share” of whichever is higher between $50,000 or one-third of the estate, a child once disinherited is entitled to nothing from the decedent.

As such, the foremost legal right of a disinherited child is to contest the will itself. There are many grounds to contest a will such as fraud, forgery, undue influence, duress, and the lack of mental capacity of the parent executing the will. What specific grounds to raise in a will contest is something that a New York estate lawyer experienced in contesting wills would definitely know.

Contesting a will 

If you believe that you were unfairly or fraudulently disinherited in your parent’s will, you may be entitled to contest the will under New York law. Contesting a will is an intricate legal affair that may require the assistance of an experienced New York lawyer specializing in will contests.

A New York will contest lawyer will be able to guide you throughout the entire legal process starting from the evaluation of your case, arranging a settlement, conducting a §1404 examination, and to contesting the will itself.

If you wish to protect, assert, and know more about your legal rights as a disinherited child, you can call the Law Offices of Albert Goodwin at (212) 233-1233.

Sources:

https://www.nysenate.gov/legislation/laws/EPT

https://www.nysenate.gov/legislation/laws/SCP/1404