Disinheriting someone from an estate is a big decision, one that requires careful consideration and precise legal drafting to avoid ambiguity, disputes, and delays. Estate planners should avoid generic clauses and embrace precise wording, while understanding the procedural safeguards and evidentiary burdens that apply if an omitted or excluded heir asserts a claim.
Planning Considerations
- Use Clear and Unambiguous Language: Explicitly name disinherited individuals in your will or trust and make clear they are not being provided for. General statements such as “anyone not mentioned is excluded” may not suffice for someone who would normally inherit. In California, all children, even estranged ones, should be listed with a statement of disinheritance. Include a general clause for potential unknown heirs.
- Address Spousal Rights Proactively: Use prenuptial or postnuptial agreements to limit inheritance. Clearly state intent in the will. Consider lifetime transfers or non-probate mechanisms to reduce assets passing through a will or trust.
- Document Client’s Intent: Create a clear record that the client knew what they were doing and wanted this outcome. Letters explaining reasons for disinheritance can serve as evidence of intent.
- Capacity Safeguards: For elderly clients or those with cognitive decline, consider a medical capacity evaluation when signing estate documents.
- Meet with the Client Alone: Ensure the beneficiary of the disinheritance is not controlling the process. Conduct private attorney-client meetings without the favored heir to avoid the appearance of undue influence.
- Consider Alternatives to Full Disinheritance: Conditional trusts or partial gifts may reduce the likelihood of lawsuits. A no-contest clause may be beneficial in this situation, but keep in mind their limitations.
- Keep Estate Plans Updated: Regularly review and revise the estate plan after major life events and update the titling of assets appropriately to reflect the client’s intent.
Avoiding Litigation
Disinheritance can spark litigation, especially in cases involving second marriages, sudden changes, or suspicious circumstances. Courts look for the true intent of the decedent. Disinherited heirs often claim the will or trust is invalid due to duress, fraud, lack of capacity, or procedural flaws. So, while disinheriting an heir in California is legally permissible, it must be approached with foresight and precision.
California laws favor clear intent and fairness, therefore:
- Be Explicit: Clearly name who is disinherited and comply with California’s rules.
- Plan Smart: Document the testator’s intent, keep plans current, and match all assets to the estate plan.
- Anticipate Fights: Expect challenges if the plan looks unfair or changes suddenly. Consult a probate litigation attorney during the planning stage for high-risk estates.
- Mind the Human Side: Disinheritance is emotional. Lawyers must ensure clients act freely and understand the consequences.
Final Thoughts
While this is not a list of all potential strategies, it is a solid starting point and a caution to plan disinheritance carefully, with understanding and forethought. And, as always, consult an experienced attorney to address your specific circumstances.
