Introduction:
You want to disinherit your son or daughter (or spouse), so you leave them out of your will or trust and give it all to your nieces and nephews or a charity. Here’s the bad news: in California, you have probably failed to disinherit them legally. The law will instead require that a portion of your estate goes to your children or spouse whether you like it or not.
It is vital if you want to be successful in your goals, to know the basic law and to craft any disinheritance correctly.
That is the topic of this article.
The Basic Law:
The definition of disinheritance is as follows:
(Merriam-Webster)
to prevent deliberately from inheriting something (as by making a will);
to deprive of natural or human rights or of previously held special privileges
In California, you do have the right to decide who will inherit your assets upon your death. That right is a jealously guarded power that the law will defend if there is ever a will contest or attack upon a trust you have created. The courts impose a high standard of proof against those who intend to invalidate a trust or will and, as discussed in our articles on Undue Influence and Incompetency, most attempts fail.
But the courts also seek to protect spouses and children and there are legal requirements before a spouse or child may be disinherited.
Children
California law presumes that children and spouses will be provided for in one’s estate planning documents. One cannot simply omit them from their Will and/or Trust. If such direct heirs are simply not included in the will or trust, it may be determined by a court that they were “forgotten” by the person making the Will or Trust and are thus given a share of the estate automatically by law. This is known as “pretermitted heirs.”
A person who claims to be a pretermitted child of a deceased parent may bring an action in probate court to contest the parent's will. Many jurisdictions have enacted statutes that permit a pretermitted child to demand an inheritance under the will. Some statutes allow a pretermitted child to claim their intestate share, while others limit the inheritance to an amount that is comparable to devises made in the will for the other children who inherited or, if the claimant was not yet born when the will or trust was written, equal to those children alive when the will was written.
Note this has nothing to do with whether the testator was competent or under undue influence of another heir or person. This is simply the sole issue of whether the testator truly meant to disinherit with the presumption being that the testator wanted to provide for children.
Some jurisdictions prohibit a pretermitted child from claiming an inheritance if the will devised substantially all of the testator's estate to the surviving spouse, and the surviving spouse is the other parent of the pretermitted child. Further, a child may also be denied the right to take under the will as a pretermitted heir if the child received an advancement against their inheritance - an inter vivos gift from the testator of an amount equivalent to what the child might have otherwise received under the will.
When a court finds that a child was pretermitted and is entitled to inheritance, to provide the child with an inheritance the court may proportionally reduce the gift under the will to the decedent's other children or may reduce gifts under the will to non-family members.
Community Property
As discussed in detail in our articles on community property, in California one owns community property with one’s spouse and that is considered an equal undivided joint interest. Put simply, it means you only own your half of the community property, and your spouse owns the other half.
Community property is any income earned and what is bought from that income earned after marriage. Thus, if I purchase a home using income I earned after marriage, that home is owned as community property. If that home is sold and stock is sold from the proceeds, that stock is community property.
Prenuptial and postnuptial agreements can alter what is community property and property owned before marriage usually retains its separate nature.
One cannot give community property away to a person other than a spouse unless one limits it to the community property half-owned. Indeed, absent contrary provisions in a will or trust, community property normally vests entirely in the surviving spouse.
It is vital to know what is community property and what is separate property when making an estate plan.
Disinheriting:
To validly restrict or disinherit someone from your estate planning, one should specifically state in a Will or Trust document: “I have elected to not leave any inheritance to XXXX in my Will (or Trust)” There are numerous other wordings that can be used but the key is to state unequivocally that one is aware of the existence of X or Y and you have decided to leave them nothing.
This does not require one to indicate the rationale for leaving that person out of the will or trust. Indeed, as discussed below, it is often better not to give any reason for the disinheritance. The critical terms are to name the person being disinherited and to provide that no gifts are going to him or her. For direct heirs, it is mandatory that this be done so that they are not determined to be a “forgotten heir”, who can gain a part of your estate automatically.
You must state your intention clearly and name the person accurately.
With community property, while you can dispose of your half as you wish, you have no power to gift your spouse’s community property, and any efforts to do so will be futile absent his or her consent.
Voices From the Grave:
An all-too-common error is for the testator when disinheriting someone, to use that needed provision to attack the disinherited person. There may be valid reasons to disinherit. That disinherited person may have acted badly, been abusive or irresponsible, or may have slandered the testator. But to include aggressive words in the will or trust creates a situation in which accusations or condemnations are addressed in a public forum which can never be retracted or resolved. It is, usually, the cruelest type of counterattack and cannot achieve anything but hurt. And that hurt can never be reduced since the testator is no longer present.
A much better way to disinherit is to either volunteer no reason (you do not have to have a reason to disinherit...it is your property and entirely up to you) or to give an innocuous reason such as “I know X is not in need of my assets at this time, thus I leave X nothing by this Will.” Whether you are right in your statement does not matter, it may take some of the sting out of the disinheritance.
Conclusion:
A decision to disinherit should never be made lightly. One should not let temporary rifts or emotions color what is a decision that will have permanent and possibly harmful consequences. But if that decision is made, then it is vital to understand the requirements of the provisions that can accomplish this goal. Seeking legal advice is always a good idea since wills and trusts are complex instruments that must be carefully drafted. The above criteria are only one aspect of drafting that requires careful wording.
And, as one client commented when executing his trust, “It had better be right. I won’t be around to clarify or change it.”