When Shirlee Smith left one of her four daughters out of her will, she was not trying to be mean.
The Pasadena, California, resident says the 44-year-old daughter she disinherited is a college graduate and has a good job and a husband whose family is wealthy.
“I never thought of it as disinheriting her,” says Smith, 76. “I simply thought of it as providing for my kids who aren’t doing so well in life.”
If Smith had more assets to fight over, she might be taking a chance by leaving one child out of her will. If the disenfranchised one gets angry enough, or the assets are large enough to make it worth it, he or she can sue in court to have the will overturned, experts say.
And it is not just the wills of the famous, like singer Michael Jackson and actor Tony Curtis, that get disputed.
“It happens more frequently than people think,” says Ron Washburn, professor of legal studies at Bryant University in Smithfield, Rhode Island. Any time a will contains a statement about a rift with a family member, “that statement is going to reverberate.”
Marina Modlin, an estate-planning lawyer in Campbell, California, says as many as 30 percent of her clients disinherit a family member from a will. Because she only handles cases in probate court if they are uncontested, she does not know how many of the wills she prepares are challenged, but she suspects it happens fairly often across the United States.
“It’s one of the most unreasonable areas of the law,” she says. “With business contracts, they’re grounded in fact, but here, you have people just getting upset, and they start basically suing because they have hurt feelings.”
Disinheriting someone can be a way to haunt a family member from beyond the grave, but there may be pragmatic reasons involved, as in Smith’s case. So if you plan to leave someone out of a will, here is a blueprint for doing it:
SPOUSES AND MINOR CHILDREN
Just as you cannot tell a divorce judge that you refuse to split assets or pay alimony, you cannot leave your surviving spouse’s house and all of the money to a child or some other family member.
Using language to disavow and disinherit your spouse will not help. Any lawyer will tell you that the spouse can waive the will and receive whatever he or she is entitled to under state law.
Minor children are also protected by the courts. Whatever financial support the minor is entitled to receive, he or she will get, assuming the money is available, says Linda Amato, an estate-planning and elder law attorney in New York City.
As cruel as it sounds to disinherit a child, people have their reasons. Sometimes there is no relationship. Other parents, like Smith, might feel the adult is well-off and does not need an inheritance.
Still, a person’s circumstances can change, so experts advise caution about withholding money.
“People can get sick or have financial setbacks,” says Steve Weisman, an estate-planning attorney in Amherst, Massachusetts.
Those planning on disinheriting an adult child should be gentle with the wording, says Denise Martin, a 55-year-old writer living in Gresham, Oregon.
Martin had a tumultuous relationship with both of her parents but believed she had patched things up with her mother, who died eight years after the two resolved their differences.
The will, which may have been written when they were on the outs, stated that for the purposes of the document, the court should consider that Martin predeceased her mother. In other words, Martin was dead to her mother.
“Her cutting me out of her will I could handle,” Martin says. “The vicious verbiage was life-busting.
“There’s a difference between legalese and cutting someone off at the knees emotionally. How a will is written matters.”
With that in mind, it could be tempting to disinherit a child by simply not mentioning his or her name. That, too, would be a mistake, says Weisman.
The court does not want to keep someone from getting assets that they deserved and that the deceased may have wanted them to have. A judge might think the omission of someone from a will was a mistake resulting from carelessness or a failure to update the document to reflect a new spouse or child, Weisman says.
If you write your will while your parents are still alive, you do not legally have to leave them anything under the assumption that you die first.
“They aren’t entitled to anything,” says Amato. But if you die without a spouse or children, your estate will go to your closest relatives, who are your parents.
So if you want to specifically and deliberately disinherit a parent, you need to write it into the will and designate a different heir, Amato says.
Just like with your parents, there is no legal obligation to leave assets to siblings, aunts and uncles, or cousins. But if you die without a spouse, children or parents, your next-closest relatives would inherit your estate, says Amato. Also, relatives could contest a will by saying they played a large role in your life or that you promised them something.
For this reason, Modlin suggests that if your estate is large enough to be worth fighting over, you should leave token amounts to family members – whether estranged siblings or a distant niece.
“A small gift to a disinherited heir may deter them from contesting the will, especially once they understand the cost of contesting it, and the likelihood of prevailing,” says Modlin.
Weisman also says a will should contain language saying that the deceased has provided for everyone he or she wishes to in the will and that if anyone is left out, it is intentional, not inadvertent.