Disinheritance of a Family Member

Clients occasionally want to talk about disinheritance of a family member. Once in a while we talk with a client about their own disinheritance. In both kinds of cases, there is a lot of confusion and misinformation.

The rules are actually pretty straightforward — or at least they are in Arizona. Remembering that other state’s laws might be implicated, let’s review some of the most important points.

Do you need to specifically disinherit distant family?

Generally, no. If you leave everything to an individual, or a group of individuals, they receive your estate. Say, for instance, that you leave everything to your children (in equal or unequal shares). Your first cousin, your uncle, and your sister aren’t entitled to anything anyway. You don’t need to mention disinheritance as to them.

That could change in particular circumstances, but it’s not very likely. Perhaps you leave everything to your children, but they all die before you do and none of them had children of their own. Assuming you die without leaving a spouse, now your estate might go to your siblings or more distant relatives. But you can address that with a will (or trust) that provides that if everyone named in the document dies before you, your estate is to go to your favorite charity, or your helpful neighbor, or your children’s surviving spouses. No need for a specific disinheritance of more distant relatives.

You could write a will or trust that says something along the lines of “no matter what else happens, my aunt Betty is never to receive a penny of my estate.” That might make you feel better (assuming you don’t much care for Betty), but it’s unlikely to be necessary.

By the way: people not named in your will or trust, or not in the (short) list of your legal heirs can’t contest your estate anyway. Why not? Because they wouldn’t get anything even if your estate planning documents were found to be defective.

Should you leave a token amount to anyone you’re writing out?

No. Please don’t.

The only reason (and it’s not really a very good one) that you might leave some token ($1, or an ugly chair, or your cat’s litter box) to someone you’re disinheriting is to make it clear that you didn’t just forget them. And it’s actually OK if you do just forget them — unless that’s somehow evidence of you not being competent at the time you signed the documents. You can make clear that you didn’t forget them by saying so: “I am intentionally omitting my brother Dave from this will (or trust)” does just fine.

There is one variation on this theme to consider, though. If you really want to incentivize Dave not to contest your will or trust, you could leave him a larger amount — say $10,000 (we just made that number up and there’s no magic about it). Then include a provision that says if he contests or challenges, he loses that inheritance. But that kind of provision is strategic, not legally required.

By the way, if you did leave Dave $1, he would become entitled to notice about the administration of your estate (or trust), and his failure to respond could delay the administration. That’s why we say “please don’t.”

Should I consider disinheritance for my disabled son or my spendthrift daughter?

Sure, consider it. But probably we’re going to advise you that disinheritance is a blunt instrument that might not serve your purposes.

If you really want your son (the one with a disability) to benefit from your estate, you should consider a special needs trust. Let’s talk about it and see if that’s right for you. But please don’t decide to leave everything to your well child and trust them to take care of your son. They might. But they might not. And their inheritance might end up in their spouse’s (or significant other’s) hands, or with your grandkids. Or even in their creditors’ hands. Even if you can trust the well child, you might not be able to trust all of those others.

Similarly, disinheritance might not be the best approach to your spendthrift (or profligate, or self-involved, or addicted, or — well, you get our point) daughter. Let’s talk about a trust for their share (even if it is a reduced share) of your estate, and make clear that you’d like to help them IF their inheritance can be made to do so.

Am I even permitted to disinherit my spouse, my kids or anyone I choose?

Generally, yes. At least in Arizona. There are some limits on disinheritance of spouses. And remember that we’re a community property state: your spouse might already own some percentage (usually 50%) of the property held by either or both of you.

Disinheritance of minor children is a bit trickier in Arizona — but only a bit. If you really want to do that, let’s talk. And your adult children aren’t entitled to a share of your estate except in very, very narrow circumstances.

Which is not to say that we encourage you to explore disinheritance. We just want you to know that you probably have quite a bit of latitude.

So if my mother had a disinheritance provision for me, can I challenge it?

Sure. But you might have quite an uphill battle.

Will and trust challenges are very difficult. No-contest provisions (if your mother included one) can make the challenge pointless. And we quite often hear from people who have waited far too long to challenge a disinheritance that has bothered them for years but which they never got around to doing anything about.

Are the disinheritance rules the same for wills and trusts?

Pretty much (at least in Arizona). They are not precisely the same, but there’s little difference.

There is this important practical difference, though: if the disinheritance is in a will, then your personal representative will have to probate your will and invite the disinherited individual to object. If it’s in a trust, then the disinherited individual has the burden of finding the information and initiating the challenge. So if you’re really going to disinherit someone you might consider creating a trust.

Is there any moral issue about disinheritance?

Sure. Or not. Your decision.

If you are really sure that disinheritance is right for you, then we don’t see any moral issue. Modern Arizona law does not give much of anyone a right to expect to receive anything from your estate. If you want to make your decision based on how well you have been treated during your life, we say “go ahead.” If you want to decide based on height, or physical proximity (or distance), or your notion of deserving character, we’re all for it. We’d like to talk through your thinking so that we can help maximize the likelihood that your disinheritance will be effective.

Conversely, if you seek to challenge your own disinheritance, we’re likely to tell you that we don’t see a path forward. And the harder you push for what you think of as your right to inherit, the more credence you might give to reason for that disinheritance in the first place.

Of course there are individual circumstances that might vary our advice. But disinheritance is not really that complicated — or at least not legally complicated. Interpersonal relationships are sometimes beyond our ken.