When You’re Leaving Someone Out of The Will – Making Sure That Your Will Is Respected

Sometimes, our lawyers are consulted by a person who wants to leave a spouse, child, or grandchild out of his or her will. That decision might be for a variety of reasons, ranging from the fact that the person being omitted from distributions is very well off and doesn’t need the inheritance to the bad behavior of a relative, or to a breakdown of a personal or family relationship.

Whatever the reason, there are a few facts and laws that you should consider whenever you are omitting a person who might normally be considered the natural object of your bounty” and therefore a person likely to inherit under your will.

First, Pennsylvania law does not permit you to completely disinherit a spouse. Of course, a valid and binding prenuptial agreement might alter this rule. But, if you do not have a prenuptial agreement, and you do disinherit a souse, he of she is permitted to “elect against” your estate and to claim a sizable portion of your probate estate (and often some non probate assets). However, this is a complicated matter under the law and you should consult legal counsel if you are contemplating a claim or disinheriting a spouse.

Unlike a spouse, children, and grandchildren have no statutory right to inherit. However, direct lineal descendant’s often have an expectation of inheritance (rightly or wrongly) and it is important to take measures to be clear in your plan documents and related documents (such as beneficiary designations) to avoid litigation following your death.

These measures can include a carefully worded clause to verify that the exclusion is intentional and not just by mistake, proving for a smaller gift which is eliminated if the recipient challenges the will, and clarifying whether gifts are intended to include step children and their descendants, or just your naturally born issue.

Finally, extra care and precautions should be taken to insure that the will can withstand common challenges. Verifying testamentary capacity, the lack of duress, and the careful execution of the documents in exact accordance with state law will all be important.

For more information on making sure that your will, trust, and estate planning documents are well drafted and can withstand a challenge following your death, watch these videos on making your will bullet proof by David M. Frees III.