Legally Speaking: Can you disinherit your family?

Legally Speaking: Can you disinherit your family?

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Linda Toga, Esq.

THE FACTS: I have been estranged from my family for many years. I want to be sure that family members are not able to inherit from my estate

THE QUESTION: Is that possible?

THE ANSWER: While you cannot disinherit your spouse, you can certainly take steps to prevent your siblings, children, cousins and other blood relatives from getting a share of your estate. However, keep in mind that even if they are not successful in inheriting from your estate, certain relatives can try to recover against your estate if you do not plan properly. Defeating claims against your estate could be time consuming and costly.

HOW IT WORKS:

You did not mention whether you were married and, if so, whether you were estranged from your spouse as well as from other family members. If you do have a spouse, she will be entitled to a share of your estate upon your death regardless of what you may do with your assets.

Spouses have a statutory right of election that entitles the surviving spouse to one-third of most of their deceased spouses’ assets, even if those assets are jointly held or are in a trust. Getting a divorce or getting your spouse to waive her spousal rights are the only options you have for defeating any claim she may make against your estate.

As for other family members, you can ensure that they do not get a share of your estate if you transfer all of our assets into a trust. Unlike a will that is subject to court oversight upon your death, a trust is generally free of such oversight. In most cases, people who are not named as beneficiaries in the trust are not even required to be given notice of the grantor’s death. That means that trust assets can be distributed without notice to your family.

If you do not want to transfer assets into a trust, you can execute a will that explicitly states that you do not want the family members identified in the will to share in your estate.

While some people believe leaving a nominal amount of money to the people they do not want to inherit will convince them not to contest their will, that strategy rarely works. If someone would be entitled to $50,000 if a will was denied probate, it is unlikely that they will accept $10 to simply walk away.

It is important to note that only certain family members have the right to contest a will. If you have children, for example, they could contest your will because, if you died without a will, they would be in line to inherit.

In that case, your siblings could not contest your will because your children have priority. Your siblings could only contest your will if you die without a spouse, parents or children. When deciding how to proceed with your estate plan, it will be helpful to understand the circumstances under which certain family members can try to recover against your estate.

If you are serious about protecting your estate from your family, you should consult with an experienced estate planning attorney. Working with an attorney who regularly deals with the issue of estranged family members is the best way to ensure that your estate plan will meet your needs.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, real estate, small business services and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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