Should I Include a Disinheritance Clause?

June 28, 2016

reading glasses sitting on top of a disinheritance clause in a willIt is not that uncommon for heirs to be disinherited for one reason or another. Regardless of the reasoning, if you feel the need to disinherit someone from your estate, a disinheritance clause in a will is the most common and most effective way to do so. Even so, you may not be able to completely disinherit someone. Here is what you need to know.

First determine what the law requires

In order to disinherit an heir you need to include clear disinheritance language in your will.  However, depending on the law in your state, you may not be able to completely disinherit certain heirs.  Some state laws, including Nevada, include specific inheritance rights for surviving spouses and children, regardless of any testamentary language you may include in your will. If your desire is to disinherit a spouse or child, you may need to consult an attorney for assistance.  If you do not use the appropriate language, the result may be expensive and time-consuming will disputes which will ultimately reduce the inheritance intended for your remaining heirs or beneficiaries.

Is there anyone I shouldn't disinherit?

Before you start making amendments or revisions to your will in order to disinherit an heir there are a few things you should know.  First of all, there is no need to disinherit someone who is not a relative because they would not inherit from you under the laws of intestate succession anyway.  Nevada has rules of consanguinity in its intestacy laws that will find an ultimate relative (whether it is a fourth-cousin thrice-removed, or a great-great-uncle) to inherit your estate if you have nothing in place; unless a relative is the next-in-line to inherit, there is no need to disinherit them.  Also, be careful disinheriting anyone who you need to handle certain matters upon your death, such as a guardian for your children or the executor of your estate, unless you have discussed the decision with them ahead of time and they understand your reasons.

Using a disinheritance clause regarding an ex-spouse

If you have been through a divorce but did not revise your will or trust, then you need to consider the need to disinherit your ex-spouse.  You can either execute a codicil or amendment that revises your estate plan, or create a new plan that includes a disinheritance clause.  Whichever method you choose, be sure to make the disinheritance clear.  The same may be done even during a legal separation or while a divorce is pending.

Disinheriting a child

The law presumes that most people want their children to inherit from their estates.  So, in order to overcome that legal presumption, your will must include a very clear disinheritance clause to show that you did not unintentionally overlook your child.  A child that you intend to disinherit must be specifically mentioned by name. If you simply leave your child out of the will, your state may assume it was a mistake and award that child his or her intestate share of your estate, as if you died without leaving a will at all (the child will be considered a "pretermitted heir").  There is no requirement that you state a reason for the disinheritance in the will.  If you are going to disinherit a child, you should also consider whether or not you intend to disinherit their descendants (your grandchildren).

Leaving assets in unequal shares

There is a big difference between disinheriting a child and leaving your property to your children in unequal shares.  It is not uncommon for parents to divide their estate in a variety of ways for a variety of reasons. Some parents decide to leave one child a large portion of the estate than others.  Some parents feel the need to take steps to protect a particular child's inheritance from others, for various reasons.  All of these wishes can be accomplished easily, through proper estate planning.  Most properly drafted trusts will have language that provides a "No Contest Clause," clarifying that if a child receiving a smaller inheritance wishes to challenge the validity of the estate plan, they will forego the right to any inheritance.  This type of language will help avoid potential litigation for your children needing the greater portion of the estate.

Language to include in your disinheritance clause

Many people have the mistaken belief that the way to properly disinherit someone is to state in your will that you are leaving them one dollar or some other nominal amount.  The problem is, if you do that, you are not foreclosing the possibility that the person will contest the will.  The best way to disinherit is to include language similar to the following: "I have intentionally failed to provide for my son, John."  Be sure to mention everyone by name in order to avoid confusion.
It is important to remember, however, that regardless of the language you include in your will, you cannot prevent an heir from contesting the will by filing a lawsuit against your estate. Any person who has standing and states a claim can contest your will, but a good attorney can help avoid these contests with the proper language in your estate plan.

Get Help from Legal & Wealth Planning Attorneys

If you have questions regarding disinheritance clauses, or any other estate planning issues, please contact the experienced estate planning attorneys at Anderson, Dorn & Rader, Ltd. for a consultation, either online or by calling us at (775) 823-9455.

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