Disinheriting a Family Member from Your Estate Plan
By Bernard A. Krooks, Certified Elder Law Attorney
Special Guest Contributor: Amy C. O’Hara, Certified Elder Law Attorney
Disinheriting a family member is a sensitive and often emotional topic. It must be handled carefully. Many people assume that they are entirely free to leave their property to whomever they choose. However, New York law has specific rules that protect spouses and restrict the ability to disinherit them. Understanding who can be disinherited, how to do it properly, and the potential challenges involved can help ensure that your estate plan truly reflects your intentions and is upheld after your passing.
The most important limitation under New York law concerns spouses. A spouse cannot be completely disinherited unless there is a valid prenuptial or postnuptial agreement in which the spouse waives the right to inherit, or they signed a waiver of right of election in line with state law and requirements. Otherwise, even if you write a Will leaving your spouse nothing, New York’s “right of election” gives the surviving spouse the legal right to claim approximately one-third of the estate. This includes probate assets, those that pass under the Will, as well as certain non-probate assets, that pass outside the Will, such as joint accounts, payable-on-death designations, and even certain property transfers made before death if done to intentionally deprive the spouse of inheritance rights. This rule underscores a key principle of New York law: spouses are protected and disinheriting one is legally difficult unless both parties knowingly agreed to it in advance.
Children, on the other hand, do not have the same protections under New York law. Many people are surprised to learn that a parent is legally permitted to disinherit an adult child for any reason, or for no reason at all. The key is clarity: a Will must make it unmistakably clear that the omission was intentional and not accidental. Estate litigation often arises when someone is left out of a Will with no explanation, leading disinherited family members to challenge the document.
When someone decides to disinherit a child or other family member, the Will should directly address the decision. Sometimes a person writes: “I make no provision for my son John, not for lack of affection, but for reasons personal to me.” Other times, the document simply states that the individual is intentionally excluded or that they are receiving $1 to clearly demonstrate awareness and intention. Contrary to popular belief, leaving someone $1 is not necessary, and in some cases can even be insulting. A well-drafted statement of intentional omission is usually sufficient and preferable.
It is also important to understand that disinheritance does not automatically prevent legal challenges. A disgruntled family member can still attempt to contest the Will by claiming that the person who created it lacked mental capacity, was unduly influenced, or did not execute the document properly. The more contentious the family dynamics, the greater the risk of post-death litigation. To minimize challenges, individuals should take additional steps, such as executing the Will under attorney supervision (which creates a legal presumption of validity), and adding a “no-contest clause,” which states that any beneficiary who challenges the Will risks losing their inheritance. A no-contest clause can deter challenges, but it only works if the person being discouraged has something to lose; if they were already receiving nothing, they have no incentive to refrain from contesting.
Additionally, many people forget that disinheritance in a Will only applies to probate assets. If a family member is named as a beneficiary on a life insurance policy or retirement account, or as joint owner of a bank account, those assets pass outside the Will. Therefore, part of effective disinheritance is ensuring that all beneficiary designations, account titles, property deeds, and trust documents consistently reflect the estate plan.
Disinheriting someone is rarely done casually. Whether the motivation is estrangement, financial irresponsibility, lifetime gifts already made, or personal reasons, it is wise to consult with an experienced estate planning attorney to ensure that the wishes are expressed legally and effectively. Outside of spouses, New York law allows individuals broad discretion, but it also provides protections and safeguards to prevent unjust or accidental outcomes. Crafting a careful and thoughtful estate plan not only ensures that your intentions are honored but also reduces the likelihood of painful disputes among those you leave behind.
Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.littmankrooks.com.