How to Disinherit a Loved One
Estate planning is an interesting area of the law. Estate planning is a very personal need for the individuals who engage in the process. However, the legal system has reduced this really personal process to a technical exercise. This is also true for will writing and it is evident in situations where testators want to disinherit their loved ones. There are two considerations the testator must make if they plan to disinherit a loved one. The testator must consider the relationship and the means by which they will use to disinherit their relative. This is because these factors can affect whether the testator’s intent actually materializes.
Omission in Will
The common misconception lay people have about disinheriting a loved one is that they simply have to omit the person out of the will. In other words, they do not make mention of the person at all when distributing their assets. This is an easy mistake with unintended consequences. This exercise can leave the process to chance and the courts. There are a number of outcomes when a testator omits a close relative from their will, particularly spouses, children and parents. When the will goes through probate, the court can presume that the person was unintentionally omitted from the will. The court can further inquire into the relationship to determine whether there was a likelihood the testator would have left the person out. If the signs point to a mistake, the omitted person may receive a distribution. The court in effect, reads the omitted person into the will thus going against the true intentions of the testator. In other instances, a testator who did not seek informed legal advice will omit a relative who they cannot disinherit under state law. These relatives include minor children and spouses, which is discussed below.
Express Language in Will
Other testators opt to use the inverse technique. Some testators will do one of two things when they use express language. They will state that the individual is not entitled to any of their assets and that they intend to disinherit them. Another technique is to actually leave a very small portion of one’s assets to the individual. Here, the testator will leave their relative a nominal amount such as 1 dollar or 20 dollars in an estate that is probably worth millions. This is a symbolic technique and signals the testator’s intent to actually disinherit their relative. It also protects the testator during probate. Here, the court cannot read the relative into a will by way of supposition or unclear intent. In this instance, the intent is clear and spelled out.
Effect of State Law on Spouses and Adult Children
New York law protects surviving spouses and minor children from disinheritance. A testator-spouse cannot disavow his or her legal marriage in order to disinherit their spouse. The probate laws protect the legal construct of marriage and the individuals in the marriage. As such, even where a testator has disinherited a spouse, the law will negate that pronouncement. In this circumstance, the distribution will be made according to the New York intestacy laws. In the same vein, a testator cannot disinherit minor children. The law recognizes parents as the legal provider for their children whether the parent is alive or deceased. As a result, the law continues to uphold this obligation even in death and without exception (as long as there are assets to distribute).
Contact Us for Legal Assistance
It is imperative to involve an attorney when writing a will. To learn more about the estate planning options that best suits your needs, contact an experienced estate planning attorney at Meyer & Spencer, P.C. We serve individuals and families in Pleasantville, Westchester, Mahopac and Putnam Counties.