How to Exclude People When Making a Will

By Laura Payet

How to Exclude People When Making a Will

By Laura Payet

How you exclude someone from your will—and whether you can—depends on who they are. In most states, you cannot completely disinherit your spouse or minor children, but you can leave out adult children and other potential heirs who would have a claim on your estate if you died intestate, or without a will. The key is to be completely clear about your intentions and to protect your beneficiaries from challenges by strictly complying with all the formalities while executing it.

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Excluding a Spouse

In most circumstances, you cannot completely preclude your spouse from inheriting part of your estate. In community property states, which include Texas and California, each spouse by law owns half of all assets acquired during the marriage, unless there is a written agreement to the contrary, such as in a prenuptial agreement.

In virtually all other states, a surviving spouse has the right by statute to claim anywhere from a third to half of the deceased spouse's estate. However, if the deceased spouse leaves the surviving spouse out of the will, the surviving spouse must take affirmative action to claim their share by filing a court challenge.

Excluding Children

Most states have statutes protecting minor children from being completely disinherited. In some states, when left out of a will, a child under 18 can choose to claim the share they would have a right to inherit if the parent died intestate. Other states mandate that a parent must provide for a minor child until they reach majority. In some states, a parent cannot leave the family residence to anyone other than a surviving spouse or minor child.

All states except Louisiana permit you to exclude adult children from your will. The document must specifically state that you intend to exclude your child. It may not be sufficient simply to not mention your child, as laws in many states intended to prevent accidental disinheritance create a presumption that a parent meant to include all their children in their will. For instance, if you have a child after you write your will and it, therefore, does not mention that child, the law assumes you did not mean to exclude the child from your will but simply forgot to update it. You may wish to append a letter to your will explaining your reasons for the omission, so there is no doubt about your intention.

Excluding Others

You can exclude other potential heirs, such as parents or siblings, by simply not mentioning them at all. However, the safest course of action is to state your wishes clearly.

  1. Express your desire that a particular individual receives nothing from your estate, especially if that person is a relative who might stand to inherit if you died intestate.
  2. Be sure that your will disposes of all your assets to avoid a challenge from a potential heir that you died partially intestate because your will failed to provide for your entire estate. One way to do this is to include a residuary clause that covers anything you may not have specifically mentioned.

Protecting Your Will's Integrity

In addition to being clear in the document that you wish to exclude someone, it's important to protect it from challenges. If a court declares your will invalid, then your state's intestacy laws apply—it will be as if you hadn't written one at all. Some of the common grounds for contesting a will include:

  • A will not executed with the requisite formalities
  • A testator who was not of sound mind
  • A testator who was subject to undue influence

When drafting your will, take note of your state's laws for excluding people. By preparing and executing this document with an attorney's guidance, you can be sure the language is sufficient to exclude anyone you wish and that the process stands up to scrutiny.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.