Is It True That It Is Against the Law to Remove a Family Member From a Will?

by Elizabeth Rayne

It is not against the law to remove a family member from a will, in the sense you won't be fined or sent to jail for disinheriting your spouse. However, depending on the laws of your state, your spouse or children may be entitled to receive part of your estate after you pass away, regardless of your attempts to disinherit them.

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Disinheriting a Spouse

In every state except Georgia, it is not possible to disinherit your spouse. The laws of the remaining states provide protection for a widowed spouse to ensure that he is given part of his spouse's estate. Some states are community property states, which grants the surviving spouse half of the property the couple obtained during the marriage, even if the spouse was disinherited in the will. Other states have "elective share" laws, which provide a more complicated formula, but still guarantee that the surviving spouse will receive a portion of the estate, even if omitted from the will. In Georgia, you can disinherit your spouse only if the will is properly drafted.

Elective Shares

In states with elective share laws, a widow has the option to either accept what the will awarded to her or go with the elective share as provided by state law. Generally, the widow has a limited amount of time to choose the elective share, after which she can take only what was awarded to her under the will. The laws of the states vary in the exact calculation, but generally the widow is entitled to at least one third of the estate. In some states, the percentage includes only probate property, meaning property that does not automatically pass to heirs. Other states provide that the percentage includes both probate and nonprobate property, such as life insurance policies or jointly owned property. Additionally, a few states consider the length of the marriage when determining the percentage. Because the elective share is voluntary, a spouse who is willing to be disinherited may opt not to claim the share; this is the only way to fully disinherit a spouse in these states.

Disinheriting Children

In every state except for Louisiana, you may disinherit your children, no matter their age. However, your intent to disinherit must be clearly stated, meaning that it must be in writing as part of a valid will. In Louisiana, children under age 23 are entitled to receive a percentage of the estate, usually one half or one fourth, depending on the number of dependents. However, an adult child who is over 23 and physically and mentally able to take care of himself may be disinherited.

Family Allowances

Many states, including Georgia, allow for a family allowance, which provides support to immediate family members for a period of time after the family member passes away. The family allowance may simply last for the time it takes for the will to go through the probate process, or it may provide support for the family for one year. The family allowance may be paid before other expenses and distributions are made under the will, meaning that the right to receive the allowance will not be affected by what is in the will.

Contesting a Will

If a family member is disinherited, she may attempt to challenge the will. Many people consider using a no-contest clause, also known as an "in terrorem" clause, and leave a small portion of the estate to any family members who may challenge the will. A no-contest clause provides that if someone challenges the will, he will be completely disinherited. However, even with no-contest clauses in place, a family member still may challenge the entire will if there are grounds to do so. The grounds for challenging a will may vary by state, but generally include fraud, undue influence and incapacity.