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Disinheriting a relative: The ins and outs

On Behalf of | Feb 5, 2013 | Estate Planning |

Contrary to popular belief, disinheriting someone– that is, removing them from a will— is not necessarily an act of betrayal or hatred. In fact, disinheriting relatives is surprisingly common, and it happens for a number of reasons. Some New Jersey parents, for example, may remove one child from their will because they want to be able to give more to another child, who may be struggling financially.

Whatever the reason, it’s important to note that the action is governed by strict laws that must be carefully followed. Some people cannot be written out of a will. Minor children, for example, cannot be completely disinherited. Parents have a duty to provide financially for their children; this duty must be considered if the parent predeceases their child.

Similarly, spouses cannot disinherit each other. Even if a spouse were to attempt this, their partner could simply waive the will and allow state law to determine their inheritance. Spouses have a right to maintain ownership of their marital property; the law protects that right.

On the other hand, just about everyone else can be written out of a will. This may be an important consideration for many people, as they must determine where they want their assets to go if they die suddenly. If a person dies without a spouse or children, his or her estate will go to his or her parents by default; if this would be undesirable, a will must be written to disinherit them and designate a new heir.

In any case, people should resist the urge to simply omit a close relative’s name from their will entirely. If a person is to be disinherited, they should be mentioned by name. This prevents a judge from thinking that the will was out of date or carelessly prepared, complicating the legal issues at hand.

Given the potential for such complications, it’s important the people prepare their wills with this assistance of a qualified legal professional. An estate planning attorney can help to identify the best estate planning tools for each person, and avoid any potential legal problems that could occur down the road.

Source: CNBC, “How to Disinherit Loved Ones-And Which You Can’t,” Feb. 1, 2013