Can I disinherit my spouse and/or my child(ren)?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 19, 2018

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You can’t disinherit your spouse completely, unless you and your spouse have waived the right to be included in the other’s estate in a prenuptial or postnuptial agreement (agreements made before or after the marriage). Each state has laws that shield a surviving spouse from being completely cut off.

In most states, the surviving spouse can choose between the property left in the deceased spouse’s Will or a statutory share set by state law (usually one-third or one-half of the estate). Whether it is advantageous to elect the share specified in state law—generous in some states, minor in others—depends on the rules for calculating this share. There is a remarkable amount of variation in these rules among the states.

In a community property state, the surviving spouse already owns half of the community property at the death of the other spouse.

Generally you can disinherit an adult child or children. To do so, it is necessary to specifically say in the Will that the omission is intentional. Often Wills have language along these lines: “I have previously taken care of my daughter Susan during my lifetime, and have chosen to leave nothing to her in this Will.” Similarly, “I am leaving nothing to my son John, for reasons known to both of us.”

If a child is a minor, states provide an allowance to support the child until he or she reaches the age of majority, typically age 18.

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