Most states will not allow you to exclude your spouse from your will. According to the American Bar Association, this stems from the days when wives had no source of financial support except their husbands, and were left destitute without an inheritance. Some states, such as Louisiana and Florida, will not even allow you to disinherit your child. When you exclude anyone who would normally be an heir under your state’s law, it is considered “negative intent.” Consult an attorney to make sure you include the proper wording in your will to prevent your excluded heir from contesting it.
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Include provisions for every possible asset in your will. If you omit anything, your disinherited heir can claim that you died partially intestate, or with an incomplete will, and can make a claim that the property omitted should pass according to your state’s laws of succession. If she is in line to receive a portion of your estate as an heir, she might then get a piece of anything you omitted even if it was your intention to leave her nothing.
State specifically that you are leaving nothing to the person you want to exclude. Don’t just omit mentioning them, warns the American Bar Association. If it is your intention to exclude your child and your state allows that, it may be best to leave them a token amount.
Add an “in terrorum,” or no-contest, clause indicating that if the person you excluded contests your will and loses that contest, then he receives nothing. This is usually only effective, however, if you are not excluding someone completely. It may be best to leave him just enough to make him think twice about risking its loss if he loses the contest.
Write a separate letter or statement giving your reasons for excluding the person you want to omit, and append it to your will. You can also back up your will with a videotape or digital recording explaining your reasons, but make sure you appear sharp and concise when you make it, and have witnesses present.
Safeguard against any claims that you are medically or mentally incompetent at the time you’re making your will by having a qualified professional present when you sign it, such as your doctor. You can also have your doctor make a notarized statement that you are competent, and attach that to your will.
Tips & Warnings
Prenuptial and postnuptial agreements supersede the law in most states. If you and your spouse are in agreement that you are not leaving each other anything, you may be able to draw up this separate document to back up your will.
If you want to provide for your spouse but don't want her children from another relationship to inherit the balance of your estate after her death, you may leave a qualified terminable interest trust, according to the American Bar Association. This would let her live off the trust for the rest of her life, but anything that is left over would go to someone of your choosing when she dies, such as your own children from another relationship.
References & Resources
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