Can You Disinherit a Child or Spouse?

Definition of disinherit -
you purposefully do not leave that person anything in your will.

You can do that by not mentioning such a person in your will at all or by stating: "I make no provision for person X".



man and woman at sickbed



If the person you are disinheriting is your child, you must acknowledge (mention) the child and then state your wish to leave him/her nothing. Failure to acknowledge the existence of your child may be deemed an accidental error and may render the will invalid.

If you do not have a will upon your death (die intestate) you cannot control who will inherit your assets since your estate will be shared according to intestacy laws in your jurisdiction.

Note: Links to our free templates for family wills can be found on our main Last Will and Testament page.



Last Will and Testament Laws

Generally speaking, a person has the freedom to dispose of his/her assets during his lifetime and also at the time of death! Therefore the wishes of the testator as expressed in the will must be carried out, unless:

  • It is unlawful - for example, money is left to set up an illegal organization or carry out an illegal act.
  • Against good morals - where a testator bequeaths an asset to his son on condition he divorces his wife or the son forfeits an inheritance if he marries out of faith.
  • Impracticably vague - a statement such as "I bequeath my favorite painting to my best friend".
  • Impossible to execute - where the testator bequeaths a property in a will but willingly sells or donates this property to another party before his death.
But that is not the whole story!





Disinheriting a Child

Having said that a person has the right to dispose of assets in a will (testamentary freedom) however he/she sees fit, does not totally hold true in every country or jurisdiction.

three figures

USA, UK, Australia and South Africa

If you disinherit minor children or children (even adult children) who are still dependent because of disability or unfinished education, they can bring a claim for maintenance and/or education against the estate.

Adult children in South Africa for example, have a hope (spes) to inherit but that does not translate into a fundamental right.

In the United States (note exceptions in Louisiana) a parent may legally disinherit a child, provided there is a will specifically stating the disinheritance. Some states may also have limitations to the extent a child may be disinherited.

You must acknowledge all your children in your will and then state, for example: "For reasons known to me, I intentionally make no provision for my child named X and his lineal descendants."

If there is no will, intestate succession law will determine the order of priority in which assets will be distributed and all children will get a share.

When disinheriting a child, it may be advisable not to state a reason in the will (especially if the reason is defamatory), lest that very reason is challenged by the child. You can however have a separate signed statement containing rational, factual and relevant facts such as:

  • The size of the estate which may only be enough to take care of the needs of a disabled dependant, etc. Or apart from the marital home which the surviving spouse is living in, there are hardly any other assets which can be distributed.
  • Proof of financial assistance or loans made to the child before the testator's death
  • The child's wealth which may be far greater than that of siblings
  • Abberrant behaviour (disentitling conduct) by the child against the testator and/or close relatives

In Australia the Inheritance (Family Provision) Act makes provision for some people to bring a claim and the court may adjust their inheritance despite there being a valid will in place. This would typically be spouses, ex spouses, children, grandchildren and parents or siblings of the deceased. The claim may be based on factors such as the claimant's financial position, health, employment status, relationship with the deceased or someone who contributed to the deceased's care prior to his/her death.

The United Kingdom also espouses testamentary freedom but the Provision for Family and Dependants Act does enable someone to make a claim against an estate.



cancelled will

Canada

The courts recognize parents to have a legal or moral obligation to make provision for children in a will.

Lack of a valid, factual and rational reason to deny an independent adult child of an inheritance may result on such a child bringing a successful wills variance claim. In such a case the court may vary the will to make provision for a disinherited child.

The same holds true if a child is given a lesser share because of gender, sexual orientation etc.

It is important to put the reasons for disinheriting a child in writing. This can be done in a separate signed document. Irrational reasons or reasons based on opinion rather than fact will have no legal relevance.

New Zealand

Adult children who are disinherited can challenge a will. Courts have amended wills to give children a share of the estate and even wealthy children or children who were estranged, abusive or undeserving have been successful in bringing claims against the estate.

Giving clear and detailed reasons why you disinherit a child can help the courts understand the rationale of the testator.

It may be better to pre-empt possible challenges by giving a child a reduced inheritance, rather than nothing. For example, by giving the child a 10 percent share (or more) may be enough to discourage the child from pursuing a claim and/or make the court reluctant to vary the will.


Before You Disinherit Someone!

legal advice on wills

It is quite clear from the above that in many jurisdictions it is not that simple to leave nothing to a child. Defending a claim can be very costly for the estate!

It is imperative to consult with a legal professional to advise on your best course of action when drafting family wills.

There are also many documented cases where a parent disinherited a child at some point in time but later reconciled and had a good relationship. The parent though may have neglected to make a new will and thereby unintentionally disinherited the child. Be sure to update your will whenever your circumstances change!

If you want to disinherit a child in your will but somehow still give that child an amount of money, you could do it by naming the child as beneficiary on a policy or bank account that is payable upon (your) death by the bank. In both instances this will not form part of your estate and need not go through probate.

A parent may also have a concern that a child will squander an inheritance or that a drug addicted child may use it to fuel an addiction. Parents could consider establishing a trust where the child would not have control over the trust and the trustee can take care of some of the child's needs.

A special needs trust can also be established to provide aditional income for a disabled child, without having to forfeit government aid. Consult an attorney!

Step-children do not have the rights of natural children unless they have been legally adopted. If you want to leave something to a step-child you need to specifically name such a child as beneficiary.



Can You Disinherit a Spouse?

In most jurisdictions spouses are protected in law from being disinherited.

However! A properly executed Premarital Agreement (Antenuptial Contract) may allow for the exclusion of a spouse in a last will. It is therefore very important to consult with an attorney to compile your documents.



Related Information Regarding Family Wills:

What can make a will invalid?

When can a person be disqualified from inheriting?

Contesting a Will FAQs

Consult with an attorney in your jurisdiction if you are unsure about any aspect regarding your will!




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