How to Disinherit Someone
Quick Answer
To disinherit someone, you must explicitly address them in your will (either naming them and stating they are to receive nothing or leaving them a nominal amount), as simply omitting them may not be effective. Spouses generally cannot be fully disinherited due to elective share laws, except through a valid prenuptial agreement.
Step-by-Step Guide
- 1Understand who can and cannot be disinherited
In most states, you can disinherit adult children, siblings, parents, and other relatives. However, surviving spouses have a legal right to an "elective share" (typically one-third to one-half of the estate) that cannot be overridden by a will, except through a valid prenuptial or postnuptial agreement. Minor children generally cannot be completely disinherited either, as courts ensure they are provided for. In Louisiana (the only U.S. state with forced heirship), children under 24 or permanently disabled children cannot be disinherited except for specific legal causes.
- 2Explicitly mention the person in your will
The safest way to disinherit someone is to explicitly name them in your will and state that you are intentionally leaving them nothing. For example: "I have intentionally made no provision for my son, [Name], and any omission of [Name] from this will is intentional and not the result of mistake or inadvertence." Simply omitting someone is risky because they may claim they were accidentally forgotten (an "omitted heir" or "pretermitted heir"), which can entitle them to a share of the estate under many state statutes.
- 3Consider leaving a nominal bequest
Some estate planning attorneys recommend leaving a small amount (such as $1 or $100) to the person you wish to disinherit, along with a no-contest clause. This approach makes it clear the omission was intentional and gives the disinherited person something to lose if they challenge the will. However, in some jurisdictions, a nominal bequest has the same legal effect as explicit disinheritance, so consult with an attorney about the best approach in your state.
- 4Include a no-contest (in terrorem) clause
A no-contest clause (also called an "in terrorem" clause) provides that any beneficiary who contests the will forfeits their bequest. This is most effective when combined with a meaningful bequest to the person you want to discourage from contesting: they must weigh the risk of losing a guaranteed inheritance against the uncertain outcome of a will contest. Note that some states (like Florida and Indiana) do not enforce no-contest clauses, while others (like California) enforce them only if the contest was brought without "probable cause."
- 5Document your reasoning
While you are not required to state your reasons for disinheritance in your will, documenting your reasoning in a separate letter or memorandum can be valuable if the will is challenged. The letter can explain your relationship with the person, the reasons for your decision, and confirm that the decision was made while you were mentally competent and not under undue influence. Do not include the reasons in the will itself, as wills become public records.
- 6Consider using non-probate transfers to minimize the probate estate
Reduce the assets subject to a will contest by using non-probate transfer mechanisms: transfer assets to a revocable living trust (which is harder to contest than a will), name specific beneficiaries on retirement accounts and life insurance policies, use payable-on-death or transfer-on-death designations on bank and investment accounts, and hold property in joint tenancy with right of survivorship. These assets pass outside of probate and are generally not affected by a will contest.
State-by-State Differences
| State | Key Difference |
|---|---|
| California | California's omitted spouse and omitted child statutes (Cal. Prob. Code 21610-21612) entitle a spouse or child born or adopted after the will was executed to a share of the estate unless the omission was intentional. California enforces no-contest clauses only when the contest is brought without "probable cause" (Cal. Prob. Code 21311). California is a community property state, so the surviving spouse automatically owns half of all community property. |
| Texas | Texas allows disinheritance of adult children with no restrictions. The surviving spouse cannot be disinherited from community property (they own their half) but can be excluded from the deceased spouse's separate property. Texas enforces no-contest clauses. Texas does not have an "elective share" statute, but the surviving spouse has homestead rights and a right to exempt personal property and a family allowance (Tex. Est. Code 353.051-353.153). |
| Florida | Florida has a strong elective share statute (Fla. Stat. 732.2065) giving the surviving spouse 30% of the "elective estate." Florida does NOT enforce no-contest clauses (Fla. Stat. 732.517), so this strategy is ineffective in Florida. Pretermitted (omitted) children born or adopted after the will are entitled to a share equal to what they would receive under intestacy (Fla. Stat. 732.302). Florida also has homestead protections that prevent the decedent from devising the homestead away from a surviving spouse. |
| New York | New York provides a surviving spouse an elective share of the greater of $50,000 or one-third of the net estate (N.Y. Est. Powers & Trusts Law 5-1.1-A). Pretermitted children who were born after the will and are not mentioned may claim an intestate share. New York enforces no-contest clauses but has exceptions for contests brought in good faith with probable cause (N.Y. Est. Powers & Trusts Law 3-3.5). |
| Illinois | Illinois provides a surviving spouse an elective share of one-third of the estate if there are descendants, or one-half if there are no descendants (755 ILCS 5/2-8). The elective share applies to the entire probate estate. Illinois enforces no-contest clauses. Omitted children born after the will was executed may claim a share unless the omission was intentional. Illinois has no forced heirship for adult children. |
Common Mistakes to Avoid
Simply leaving the person out of the will without mentioning them
Consequence: If the person is a child or spouse, they may be treated as an "omitted heir" or "pretermitted heir" under state law and automatically receive a share of the estate. The court will assume the omission was accidental unless the will explicitly states otherwise. Even for non-family members with an expectation of inheritance, silent omission invites will contests.
Trying to disinherit a spouse without a prenuptial or postnuptial agreement
Consequence: In virtually every state, the surviving spouse can elect against the will and claim their statutory share (typically one-third to one-half of the estate), regardless of what the will says. The only reliable way to disinherit a spouse is through a valid prenuptial or postnuptial agreement in which the spouse waives their elective share rights.
Relying on a no-contest clause in a state that does not enforce them
Consequence: States like Florida and Indiana do not enforce no-contest clauses. If you rely on a no-contest clause as your primary deterrent and live in a state that voids such clauses, the disinherited person can challenge the will with no financial risk. Always verify enforceability in your state.
Making the disinheritance decision while visibly angry or in conflict with the person
Consequence: If a will contest is brought, the contestant may argue that the disinheritance resulted from undue influence by another party who manipulated the testator's emotions. A will made during a period of visible conflict is more vulnerable to challenge. Document that the decision was made with a clear mind and for well-considered reasons.
Documents You'll Need
Last Will & Testament
Prenuptial Agreement
Power of Attorney
Frequently Asked Questions
Related Guides
This website provides legal information, not legal advice. The information on this page is for general informational purposes only. No attorney-client relationship is formed by using this site. Laws vary by jurisdiction and change frequently. For advice specific to your situation, consult a licensed attorney in your state.