Can I disinherit relatives I don't like?

It depends on whom you want to disinherit. If it's anyone other than your spouse or child, the rule is very simple: Don't mention that person in your will, and he or she won't receive any of your property. Rules for spouses and children are somewhat more complex.

Spouses

It is not usually possible to disinherit your spouse completely. If you live in a community property state (Alaska (only if you have made a written community property agreement), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin), your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can, however, leave your half of the community property, and your separate property (generally considered to be all property you owned before marriage or received via gift or inheritance during marriage), to anyone you choose.

In all other states, there is no rule that property acquired during marriage is owned by both spouses. To protect spouses from being disinherited, these states give your spouse a legal right to claim a portion of your estate, no matter what your will provides. But keep in mind that these provisions kick in only if your spouse challenges your will. If your will leaves your spouse less than the statutory share, and he or she doesn't object, the document will be honored as written.

If you don't plan to leave at least half of your property to your spouse in your will and have not provided for him or her generously outside your will, you should consult a lawyer -- unless your spouse willingly consents in writing to your plan.

Children

Generally, it's legal to disinherit a child. Some states, however, protect minor children against the loss of a family residence. For example, the Florida Constitution prohibits the head of a family from leaving his residence to anyone other than a spouse if he is survived by a spouse or minor child.

Most states have laws -- called "pretermitted heir" statutes -- to protect children of any age from being accidentally disinherited. If a child is neither named in your will nor specifically disinherited, these laws assume that you accidentally forgot to include that child. In many states, these laws apply only to children born after you made your will, but in a few states they apply to any child not mentioned in your will. The overlooked child has a right to the same share of your estate as he or she would have received if you'd left no will. The share usually depends on whether you leave a spouse and on how many other children you have, but it is likely to be a significant percentage of your property. In some states, these laws apply not only to your children, but also to any of your grandchildren by a child who has died.

To avoid any legal battles after your death, if you decide to disinherit a child, or the child of a deceased child, expressly state this in your will. And if you have a new child after you've made your will, remember to make a new will to include, or specifically disinherit, that child.

What should I do with my will after I sign it?

After you die, your executor (the person you appointed in your will) is responsible for seeing that your wishes are carried out as directed by your will. So wherever you choose to keep your will, make sure your executor (and at least one other person you trust) knows where to find it.

Your executor's first task is to locate your will, and you can help by keeping the original in a fairly obvious place. Here are some suggestions.

• Store your will in an envelope on which you have typed your name and the word "Will."
• Place the envelope in a fireproof metal box, file cabinet or home safe. An alternative is to place the original in a safe deposit box. But before doing that, learn the bank's policy about access to the box after your death. If, for instance, the safe deposit box is in your name alone, the box can probably be opened only by a person authorized by a court, and then only in the presence of a bank employee. An inventory may even be required if any person enters the box or for state tax purposes. All of this takes time, and in the meantime, your document will be locked away from those who need access to it.

What if someone challenges my will after I die?

Very few wills are ever challenged in court. When they are, it's usually by a close relative who feels somehow cheated out of his or her rightful share of the deceased person's property.

Generally speaking, only spouses are legally entitled to a share of your property. Your children aren't entitled to anything unless it appears that you unintentionally overlooked them in your will.

To get an entire will invalidated, someone must go to court and prove that it suffers from a fatal flaw: the signature was forged, you weren't of sound mind when you made the will or you were unduly influenced by someone.

Copyright © 2002 Nolo

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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