Can You Disinherit Someone, and Will It Hold Up?

Planning for where your money and property will go after your passing is challenging, especially when you’re facing difficult family dynamics. While few of our clients want to completely disinherit their family members, it does happen in some circumstances. When that happens, it’s natural to ask whether you can leave someone out of your will.

The short answer is that in Arizona, you generally can disinherit family members, though there are some restrictions for your spouse and minor children. However, you need to be careful to avoid litigation after your death—and you need to work with an experienced estate planning attorney to make it work.

Reasons you might want to disinherit a relative

• Estrangement: If there has been a breakdown in the relationship with a family member, it’s understandable that you may not want your money to go to that person.
• Wealth: If one of your relatives is already wealthy, you may want your assets to go to someone who needs them more.
• Responsibility: If you have a relative who you believe will waste your assets or handle them irresponsibly, it’s reasonable to want the inheritance to go elsewhere.

Disinheriting a relative is a big step that is rarely taken lightly. It’s not about malice or spite; it’s about ensuring that your legacy reflects your wishes and priorities. The law allows you to do that, with some limitations.

In general, you can disinherit any relative, with two big limitations

Generally speaking, you decide who does and doesn’t inherit your money and property. Under Arizona law, you generally can disinherit siblings, nieces and nephews, and other family members—even if they were included in a previous version of your Last Will and Testament. You can also disinherit your adult children. There are, however, two big limits on who you can disinherit:

• Minor children: Again, you can disinherit your adult children, but disinheriting a child under 18 is a no-go under Arizona law. The more typical method to limit a child’s access to your money and property is to put it in a trust managed by a trustee.
• Your spouse: While you can disinherit your spouse to some extent, keep in mind that they are still entitled to their share of your community property.

Methods to help your decision to disinherit hold up

Let’s be clear: when you leave someone who would otherwise be entitled to an inheritance out of your will, the likelihood of the will being contested after your passing goes up. There is no way to guarantee that there won’t be a contest. However, there are several steps you can take to reduce the likelihood of a contest and/or improve the probability that your last wishes will ultimately hold up in court.

• Make sure you explicitly state the disinheritance is intentional. Simply leaving someone out of your Last Will and Testament often isn’t enough to disinherit them, since they may claim that you left them out inadvertently. Under Arizona law, an “omitted child” may be entitled to a share of your estate (since the law wants to protect children who are victims of actual mistakes). Explicitly saying that you intentionally left them out makes it harder to challenge the will on that basis.
• Consider leaving a nominal gift instead of giving them nothing at all. Again, if you leave something instead of nothing, it’s harder to argue that your decision to disinherit was unintentional.
• Consider including a no-contest clause. A no-contest or in terrorem clause means that any beneficiary who challenges your will and loses forfeits any share of the estate they may have otherwise received. This can reduce the probability of a contest by raising the stakes.
• Document your mental capacity. A relative who was disinherited may claim that you lacked capacity or were unduly influenced to change your will. Working with an attorney and documenting your capacity to execute your new Last Will and Testament can protect against a challenge on that basis.

In addition, take a close look at assets with a named beneficiary, such as life insurance policies and accounts with a transfer-on-death or payable-on-death provision. Those assets will always pass to the named beneficiary, regardless of what your Last Will and Testament says, so you want to ensure that the named beneficiary is the person you actually want to receive them.

Finally, consider any alternatives to disinheriting, such as setting up a trust to manage your assets for the benefit of your relatives. This can be a particularly effective method if you are primarily concerned about whether someone will handle their inheritance responsibly.

Talk to an experienced estate planning attorney today

Making the decision to disinherit a family member isn’t easy, and neither is crafting your Last Will and Testament to stand up to a potential court challenge. That’s why it’s so important to work with an experienced estate planning attorney.

We understand Arizona’s complex inheritance laws, and we know how to guide you through the process and protect your legacy. Give us a call or contact us online to speak with an experienced attorney at Brown & Jensen today.

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