Can a Last Will and Testament Legally Discriminate?

by Phil M. Fowler

Discrimination is a frequently misunderstood term that, properly understood, has a fairly narrow legal application. Specifically, it is the unequal treatment of persons for a reason that has nothing to do with their legal rights or ability. Although discrimination is not legally permitted in certain circumstances, such as employment, it is perfectly legal within the terms of a last will and testament.

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Illegal Discrimination

Discrimination, or the unfair treatment of a certain category or class of individuals, is only illegal if a specific state or federal law makes it illegal. For example, several federal laws make discrimination illegal in housing, employment, educational opportunity, government services, and civil rights. Absent a specific law making a type of discrimination illegal, discrimination may be permissible under certain circumstances.

No Applicable Laws

Neither federal law nor state law, in any of the United States, makes discrimination in estate planning illegal. Unlike the decision to hire an employee, for example, the decision to grant an inheritance to certain people, or deny it, is a purely private decision that state and federal laws do not interfere with.

Total Control

With very few exceptions, a person has total control over the content of their last will and testament, including who or what entity is to receive a bequest. A last will and testament provision that is intended to promote criminal activity, such as a bequest to benefit drug trafficking, will not be enforced. However, a provision that simply appears discriminatory, but not illegal, is enforceable even if it seems crude or unfair.

Family Rights

Immediate family members of a deceased individual, particularly the surviving spouse, often have elective rights under state law. Thus, a last will and testament that disinherits such family members will often not be enforced. For instance, in states that follow the Uniform Probate Code, a spouse has an "elective share" right, regardless of whether the deceased spouse's last will and testament attempted to discriminate against the surviving spouse. A surviving wife, for example, can often claim her elective share of a deceased spouse's estate, even if his last will and testament attempted to discriminate against women by denying any bequest to a woman.