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How to Leave an Heir Out of Your Will

When the multi-married actor Henry Fonda died in 1982, he left his estate to his fifth wife, to whom he was married at the time of his death, and one child he had adopted with his third wife. He specifically left nothing to his other two children, the actors Peter and Jane Fonda, who he had fathered with his second wife.

The words Fonda used in his will concerning his decision not to leave any of his estate to his children Peter and Jane were: “My decision is not in any sense a measure of my deep affection for them.” He then noted that both children were financially independent, but his third child and current wife “are dependent on me for their support.”

Peter and Jane Fonda honored their father’s wishes and did not contest his will. However, the same cannot be said for other well-known figures who have died with wills intact but perhaps not the correct wording that makes it clear the intentions of the testator (the person who died with a will). In some cases, the disinherited heirs question whether the testator was in his or her right mind when disinheriting them.

There are legions of stories about heirs who were shocked to find out they were completely left out of their parent's or spouse’s will. One example is legendary Chicago Cubs baseball player Ernie Banks who died in January 2015. It was then discovered that, three months before his death, he had written a new will and left everything he owned to his longtime caregiver.

As for his wife and three children, they were left nothing. The family’s attorney reported that the will stated, "I am making no provisions under this will for my wife or my children, not for a lack of love and affection for them and for reasons best known to them."

The cause of death on the death certificate was listed as a heart attack. Dementia was also listed as a contributing factor. Banks' wife and children contested the will, claiming that the caregiver had exercised undue influence over Banks, who, they allege, was not in his right mind when he changed his will. Based on the dementia, the family also alleged that Banks lacked the mental capacity to make such a change to his will.

Before you leave a loved one out of your will, or someone who would normally inherit under state law if a will was not created, there are some factors you need to consider. If you are committed to omitting an heir, there are some guidelines you can follow so that your wishes will be strong enough to hopefully deter a disappointed heir from filing a lawsuit contesting your will.

Who Is Considered an Heir?

An heir is someone who, according to state law, is entitled to receive property when the owner dies without a will. Almost all states have the same order of succession of those who stand to inherit if there is no will:

  1. Spouse – Your surviving spouse, to whom you are legally married at the time of your death, will generally get a percentage of your estate. The percentage amount depends on the applicable state law.
  2. Children – Your estate will be divided among your children. This includes legally adopted children as well as your biological children, including a biological child born after your death. In most states, this does not include stepchildren. If you have no children, it will all go to your spouse.
  3. Grandchildren – Your grandchildren will inherit your estate if your child predeceased you.
  4. Parents and siblings – Your parents and siblings, including half-siblings, will inherit if you have no spouse or children.

The list can go on and on until the person most closely related to you is found. No matter how close you are to, or how long you have been with, a partner to whom you are not married, the partner is not an heir.

Check with your state law specifically. When you know exactly who would inherit if you did not have a will, you will know whether or not you have to specifically mention them in the will as a person to whom you are leaving nothing.

There are Limitations on Who Can Be Omitted

In the U.S., in all states except for Georgia, you cannot disinherit a spouse unless the spouse has agreed to that in a valid prenuptial or postnuptial agreement. In all states except for Louisiana, you can disinherit your adult children.

Louisiana does not allow a testator to omit children under the age of 23, or children of any age who are permanently mentally or physically handicapped and unable to take care of themselves or manage their own finances. If there is enough money in the estate, the estate must provide for them.

No state allows parents to disinherit children under the age of 18. Even if you provide a specific reason for leaving out a specific child in your will, if the child is younger than 18 it will not matter. Your child or children will still receive the amount they would have received if you had died without a will.

Alternatives to Leaving an Heir Out of Your Will

If you are concerned that if you leave a certain person an inheritance they will squander it on drugs or alcohol, exotic trips, or spend it in other ways you feel are inappropriate, then you can establish a trust for that person. You can have a certain person or entity, like a bank, who will be in control of the funds and only authorize certain types of expenditures. You can leave incentives such as the trust will pay for college, or give specific rewards after the person keeps a job for a certain period of time.

If you are concerned that by leaving a loved one an inheritance they might lose government benefits they need in order to pay for medical care in a nursing home or other care facility, or for mental health treatment, then you can establish a special needs trust. This provides a way for the person to still qualify for benefits, and the special needs trust can pay for things that are not covered by the government benefits.

If, after considering all the pros and cons of leaving an heir out of your will, you decide to go ahead with your plan, there are some steps to take that will make your wishes clear.

How to Leave an Heir Out of Your Will

There are no guarantees in the law, but if you have considered all of your options and still want to leave an heir out of your will, here are some tips that will make it very difficult for that heir to challenge your will:

  • You must say something – If you do not leave anything to your heir in your will and do not specifically name that person and express why you are not leaving him or her anything, it will be interpreted as an oversight and that person may be able to contest the will and win. You must take positive steps to make it very clear that you had the intent to leave that person out of your will.
  • Use specific language – The language you use must not be equivocal. It must be beyond dispute that you do not want a specific person to inherit and explain why. The explanation as to why can vary with the circumstances. As Henry Fonda explained, two of his children were financially independent, yet his other child relied upon him for support.
  • Keep your will current – Circumstances do change and your feelings about leaving an heir out of your will may also change. A writer living in Oregon talks about how she had a tumultuous relationship with her parents for a period of time in her life. When her mother died, it was discovered that her mother had disinherited her in a will that had been written eight years earlier. The fact they had patched things up and had a good relationship at the time of her mother’s death was not relevant. The mother had not changed her will in those eight years and the daughter remained disinherited. In another case, a woman who had been estranged from her father when he wrote his will in 2000 had long since reconciled with him when he died in 2009. Still, under the 2000 will (the most current will that he had written), the father left property worth $3 million to her three brothers and nothing to her. The woman understood how it came about that she did not share in the inheritance with her brothers and that the intent of her father in 2000 was likely not his intent in 2009, but it was still emotionally difficult for her to not have shared in her father’s estate.
  • Make sequential wills – One way to firmly cut an heir out of your will is to periodically make a new will with only a slight change each time, but each time the heir is still disinherited. If the omitted person decides to challenge the will, the sequential wills are pretty strong evidence that it was not a mistake and you did not change your mind: you intended to leave that person out of the will. It also creates extra protection against a will challenge. If the disinherited person is able to successfully challenge one will, then the next one in line will also have to be challenged. That will likely create a will challenge impediment that cannot be overcome.
  • Leaving $1 creates more problems – There seems to be a misconception that leaving an heir $1, or other nominal amount, is a good way to keep them from inheriting and is an effective way to disinherit them. However, that is likely to create more problems than necessary. Under laws of probate in all states, the person will be notified that he or she was named in your will as a beneficiary. Then, that person will be let down by the news that it was only $1. A check from the estate in the amount of $1 will have to actually be delivered to the beneficiary, increasing the costs of probate.
  • Keep communication open – One mother of four daughters left one daughter out of her will. When, well before the mother died, the omitted daughter discovered that, she was emotionally crushed. She interpreted it as being disinherited and thought her mother was being mean to her. When she discussed it with her mother, the daughter was able to understand that her mother believed that since she had a good education, a good job, and a wealthy husband, and the other three adult children were struggling financially, she would not face financial difficulty by being left out of the will. The daughter understood her mother's reasoning and was okay with her mother's decision. Communication while you are preparing your will can be key to keeping emotions in check so there is not a surprise after your death when the contents of your will are suddenly discovered.
  • Add a concluding statement – Leave a final comment at the end of your will verifying that you have provided for everyone you wish to provide for and that if anyone is left out, it was an intentional act and not something that was done inadvertently.

Finally, in most states, you must sign your will in the presence of two witnesses. After observing you sign the document, the witnesses will then sign it. You and your witnesses must all be present at the same time for the signing of the document, and you must sign it in the proper order. The witnesses must be “disinterested,” which means they are not heirs and will not inherit under your will.

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