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.
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:
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.
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.
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.
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:
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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