Can I disinherit my spouse and/or my child(ren)?

You can’t disinherit your spouse completely, unless you and your spouse have waived the right to be included in the other’s estate in a prenuptial or postnuptial agreement (agreements made before or after the marriage). Each state has laws that shield a surviving spouse from being completely cut off.

In most states, the surviving spouse can choose between the property left in the deceased spouse’s Will or a statutory share set by state law (usually one-third or one-half of the estate). Whether it is advantageous to elect the share specified in state law—generous in some states, minor in others—depends on the rules for calculating this share. There is a remarkable amount of variation in these rules among the states.

In a community property state, the surviving spouse already owns half of the community property at the death of the other spouse.

Generally you can disinherit an adult child or children. To do so, it is necessary to specifically say in the Will that the omission is intentional. Often Wills have language along these lines: “I have previously taken care of my daughter Susan during my lifetime, and have chosen to leave nothing to her in this Will.” Similarly, “I am leaving nothing to my son John, for reasons known to both of us.”

If a child is a minor, states provide an allowance to support the child until he or she reaches the age of majority, typically age 18.

Case Studies: Disinheriting Spouse and Children

Case Study 1: Disinheriting a Spouse

John and Lisa were married and had not signed a prenuptial or postnuptial agreement waiving their rights to each other’s estates. John passed away, leaving a Will that excluded Lisa. However, in most states, a surviving spouse has the right to claim a statutory share of the deceased spouse’s estate. Lisa chooses to exercise this right and claims her statutory share, which is set at one-third of the estate. Despite being disinherited in the Will, Lisa is still entitled to a portion of John’s estate.

Case Study 2: Disinheriting an Adult Child

Sarah has two adult children, Susan and John. In her Will, Sarah explicitly states that she has chosen to leave nothing to Susan for reasons known to both of them. Sarah passes away, and her Will is executed. Susan receives no inheritance, as stated in the Will. Disinheriting an adult child is possible by clearly expressing the intention in the Will.

Case Study 3: Minor Child’s Allowance

Michael has a minor child, Emily, who is under the age of majority (typically 18). In his Will, Michael designates a specific allowance for Emily’s support until she reaches the age of majority. This provision ensures that Emily will receive financial assistance until she becomes an adult.