If I had a dollar for every time someone asked this question when creating an estate plan… well, you get the point. There’s a common belief that if you want to disinherit an heir, say an adult child, that you should leave them $1 and nothing more in your will or trust. The thought is that doing so serves to acknowledge the heir (so you can’t be accused of unintentionally leaving the heir out) while making it clear that you do not wish for them to share in your estate after your passing
The truth is that leaving your heir $1 in your will in order to disinherit them is not necessary. Going this route may even end up costing your estate. For the heir to formally receive his or her dollar, they will need to be notified and a check will need to be drawn up and sent to that person by your Executor (called a Personal Representative in California) or your Trustee. The Executor or Trustee will be unable to close out the estate’s checking account until the check is cleared. As you can imagine, everyone involved in this process of identifying the heir, sending out notifications, and paying the heir is also charging for their time along the way.
That said, you will want to acknowledging the existence of heirs and be express about your wish to disinherit them. California law presumes that you intend to provide for your heirs in your estate plan. Should you draft an estate plan and simply leaves out any mention of them, you run the risk of the court concluding this was done in error. The court may decide to give a portion of your estate to the left out loved one.
If you wish to disinherit an heir (who is not a spouse) for whatever reason (you no longer have a relationship with the person, they do not need the money, etc.), there is an easier way to accomplish your goals. When you create your will or trust with an Irvine estate lawyer, he or she will simply include a line in your will that states you acknowledge your relationship with the heir, but that you will not be leaving a bequest to this person. You do not have to explain why or air any dirty family laundry. And, it will ultimately spare your estate the costs mentioned above of having to administer a $1 check.
Sometimes people wish to disinherit heir spouses. Often, it’s because their spouse is financially secure on their own and don’t need the inheritance. Other times it is because the individual was previously divorced and wants to ensure that certain assets go to their children from the previous marriage and not to their new spouse. Other times, it’s because there’s a dispute but the couple is not divorced. No matter the circumstance, Californians can’t completely disinherit their spouses due to California’s community property laws which state that each spouse retains one-half of property obtained during marriage.
So while you can control what happens to your half, you are not able to do so for your spouse’s half without their consent. If you truly want to see to it that your spouse doesn’t inherit any assets, the only way to do this is to execute a prenuptial or postnuptial agreement to have your spouse agree to keep the assets separate.
Who you chose to leave your estate to is your business; you can disinherit an heir (who is not a spouse), and you do not owe your attorney or your loved ones any additional explanation. But, it’s important to know that your goals can be accomplished in such a way that does not further inflame hard feelings or open your estate up to disputes or unnecessary legal costs. The key is to be open with your attorney about your family dynamics or concerns so that he or she can help you create a Last Will and Testament or Trust that honors your final wishes without causing unintended problems.
If you have additional questions about wills, trusts, inheritances, and perhaps disinheriting an heir, we are here to help guide you through all of your options. Simply call (949) 333-3702 to schedule an appointment.
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Kevin Snyder is a husband, father, and an Orange County estate planning attorney and elder law attorney at Snyder Law, PC in Irvine, California. He’s all about family and passionate about estate planning, elder law, and veterans. He founded Snyder Law to help people be prepared and have the peace of mind they are protecting their families and aging parents for when life happens.