Global Family Law Services

Can a child, spouse or other family member be ‘disinherited’?

| Sep 24, 2014 | Inheritance / Disinheritance, Wills / Living Wills

This article originally appeared as a column for the Cleveland Jewish News.

Inheritances – or, more precisely, who gets them – serve as the plot device for many a movie. Imagine, if you will, two hopeful heirs to a large family fortune. One heir coerces the elderly, not altogether there, relative to revise his will in order to disinherit the competition.

Or, an heir hatches an elaborate plot to get her rival out of the picture through more nefarious means. Perhaps a wealthy childless aunt is fed up with the lack of attention she received from her nieces and nephews throughout the years and leaves her entire fortune to her beloved cat. Can these things actually happen in real life? Sure they can. And, though they are relatively uncommon, sure they do.

While the term “disinheritance” probably brings to mind all sorts of terrible images of family fights and strife, all leading up to a climactic moment where the testator proclaims loudly that he is taking you out of his will, that is most often not how it plays out in the real world. More typically, rather than being accomplished with a dramatic flourish, a disinherited family member is simply omitted from the will.

And, the nieces and nephews who ignored their aunt all those years will probably only discover after their aunt’s passing that they are out of luck, even as Fluffy continues to live a life of luxury lapping up fresh cream and dining on sushi grade tuna.

On the other hand, when children are disinherited from a will, probate courts generally prefer to see that the will contains specific language indicating the disinheritance. Without specific language, there is a concern that the omission was accidental.

In cases where the language of the document very clearly states that someone has been disinherited and is to receive nothing from the estate, it will probably be followed. There are, of course, some exceptions that might lead the disinherited to reasonably challenge the will. For example, the will could be deemed invalid if it was not in writing, was not signed, or was not appropriately witnessed. It could also be challenged if it the writer was coerced or was not of sound mind to make important estate planning decisions at the time he signed it.

Spouses, however, enjoy a different status, in Ohio and in most states. Even if a will indicates that a spouse is intentionally disinherited, he or she really cannot be. Irrespective of what the will says, the widow (or widower) can instead opt to take a part of the estate. For example, she may still keep the marital home and all of its contents. She may be able to keep up to two automobiles. And she may be entitled to cash or other assets totaling up to half of the estate (though note that this amount may decrease if the testator has living children.)

Finally, it is important to understand that some assets are transferred on death with no regard to a will at all. For example, life insurance policies and retirement accounts have beneficiaries named, and the proceeds will be distributed accordingly. If there are any assets held in a trust, they will be distributed per the provisions of that trust. And, assets like bank accounts and real property that are held with payable-on-death or transfer-on-death provisions will be distributed accordingly.

The bottom line is that if you have been disinherited, or if you are seeking to leave a family member out of your will, it is important to talk to a legal professional. Probate laws are rather nuanced, and, while there are an infinite number of will templates and legal information available in books, software, and on the Internet, it is most prudent to seek professional advice that is specific to your case. After all, wouldn’t you rather get it right the first time?

Oh yes, and lest I forget about that would-be heir who tried to poison her brother to get the entire inheritance for herself, she will almost certainly go to prison with no inheritance at all.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.