Santa Clara Will and Estate Lawyer Answers, “Can I Exclude My Spouse or Child from My Will?”

By Santa Clara Will and Estate Lawyer Gray Brainin

Excluding someone from your will, particularly if it’s your spouse or your child, can be complicated. In some states, it’s not even allowed. Leaving out people who wouldn’t automatically receive any of your estate is usually as simple as just not including them. However, if you do want to be specific about excluding someone to make sure they don’t inherit any part of your estate, you’ll need to keep a few things in mind.

First, disinheriting someone depends on their relationship to you and your state’s laws. In most states, you cannot completely disinherit a spouse no matter what kind of legal language you use. The law simply won’t allow it. Your spouse will have the right to waive your will and collect whatever they are entitled to under the law. The same applies to your minor children. Whatever the state law says your child is entitled to inherit is what they will get in spite of what you may have stated in your will.

Adult children, however, are a different matter. Regardless of your reasons for leaving an adult child out of your will, whether it’s because you don’t have a relationship with them or they simply don’t need any of your assets, be careful about how you do it.

Some parents may think that just not mentioning their child or children would be enough to keep them from receiving any part of the estate. A better approach would be to include the individual and be specific about your intention to not leave them anything. There’s no need to include any hurtful language when explaining your wishes. Simply mentioning their name is enough to keep the Court from assuming that it was an oversight or an omission caused by a mistake or a lack of updates to the will.

The only time it would be necessary to intentionally exclude other relatives, like siblings or parents, would be if you had no living spouse or children. In this case, if your parents are still alive when you pass away, they would automatically receive whatever you leave behind. The best way to keep this from happening is to include language in your will stating that you do not want your estate to go to them.

If your parents do not outlive you, your estate would next go to your surviving relatives—sisters or brothers, aunts or uncles, nieces or nephews. Should you decide that you do not want any of your property or assets to go to them, you’ll want to mention this in your will.

Remember that any omission may leave the door open for your will to be contested. If you’ll be leaving a considerable amount behind, it may be a good idea to make sure all of your relatives are included by leaving them something small, just a token to make your intentions of excluding them clear. This could also discourage them from contesting your will once they realize they would stand to lose more than they would gain.

Adding language to your will stating that any omissions or exclusions are intentional rather than accidental can also help ensure that your wishes to exclude particular relatives are carried out. If you need assistance creating a will that reflects your wishes and includes the proper language to avoid a will contest down the road, simply contact our Santa Clara will and estate lawyers at (650) 422-3313 to schedule a consultation.