Disinheriting someone

Leaving a close relative out of a will is legally possible in most circumstances and requires deliberate drafting rather than simple omission.

What can and cannot be done

Adult children can generally be disinherited entirely in most states, which is a notable feature of common law systems.

Many civil law countries, by contrast, have forced heirship rules reserving a portion for children regardless of the will — relevant for anyone with assets abroad.

Spouses generally cannot be disinherited entirely.

Most states provide a surviving spouse with an elective share — a statutory right to claim a defined portion of the estate regardless of the will's terms.

The size and calculation vary, and some states include assets that pass outside probate in the calculation.

Community property states have their own rules governing what can be disposed of.

A spouse can waive these rights by agreement, before or during the marriage, provided the agreement meets requirements including full disclosure and independent advice.

Minor children may have support rights in some jurisdictions, and some states provide family allowances that have priority over testamentary provisions.

The drafting that works

Name the person explicitly and state the intention. Silence invites the argument that they were forgotten.

Many states have provisions protecting children omitted from a will where the omission appears accidental — particularly children born after the will was made.

A clear statement that the person is being deliberately excluded removes that argument.

Do not explain at length. A brief statement of intention is sufficient.

Detailed reasons create material that can be disputed factually, and anything defamatory can create separate difficulties.

"I have made no provision for my son, which is deliberate and not an oversight" is generally better than several paragraphs of justification.

Leave a small legacy instead, which gives a no-contest clause something to bite on.

A person left nothing has no disincentive to challenge; a person left a meaningful amount risks losing it.

Include a no-contest clause, noting that enforceability varies considerably by state and that some jurisdictions decline to enforce where a challenge was brought in good faith.

Address all the routes. A will that excludes someone achieves nothing if a retirement account or insurance policy still names them.

Reducing the challenge risk

Where an exclusion is likely to be contested.

Professional drafting, with the attorney's file notes recording the instructions and the person's reasoning.

Contemporaneous capacity assessment where age or health might be raised.

Video recording of the execution, which is used occasionally and is genuinely double-edged.

It can demonstrate capacity, and it can also provide material for a challenger where the person appears frail or hesitant.

Practitioners differ on whether it is advisable, and it should not be done without advice.

Consistency over time. An exclusion that has appeared in several successive wills is much harder to attribute to influence or incapacity than one that appeared for the first time shortly before death.

Excluding the beneficiaries of the exclusion from the process — the people who benefit from someone being left out should have no involvement in arranging the will.

The trust alternative

Worth considering.

Assets held in a properly funded revocable trust generally pass outside probate, which means a challenge requires a separate action and the terms are not automatically public.

This does not make a challenge impossible, and it changes the procedural position and removes the publicity.

The conversation

Difficult and worth considering.

Telling someone during your lifetime that they will not inherit is uncomfortable and removes the element of discovery that fuels most challenges.

It also removes the argument that the person did not know their own intentions, and it means any dispute happens while you can address it.

Where a direct conversation is not possible, a letter kept with the will — expressing the reasoning in measured terms — serves a similar purpose.

Neither is legally required, and both substantially reduce the likelihood of litigation.

General information only, not legal advice. Elective share rights and no-contest enforceability vary by state — consult a qualified attorney.