There’s no doubt that modern families can be complicated. If you’re estranged from certain family members or do not trust them to make sound financial decisions, you may want to take steps to ensure they do not inherit any of your assets after you pass away.
Virginia law generally gives people the right to leave their property to whomever they choose. However, if you’re planning to disinherit a family member, you need to carefully consider your options to prevent your will from being successfully contested and to reduce the potential for conflict among your remaining heirs after you’re gone.
Disinheriting Your Spouse
Because marriage is now viewed as an economic partnership, Virginia law makes it virtually impossible to disinherit a surviving spouse. Your surviving spouse can generally go to court to claim up to half of your estate even if you purposely leave them out of your will. The exact amount your spouse can claim depends on several factors, including the length of the marriage and if you have children together. However, they will receive one third to one half of your estate as long as they file their claim within six months of the date of your death.
The only possible exceptions that would allow you to disinherit a spouse include:
- Your spouse is willing to voluntarily waive their right to a share of your estate.
- You’ve established specific terms in a valid prenuptial agreement.
- Your spouse fails to challenge their disinheritance within the legally allowed timeframe.
Disinheriting Your Children
Although children are assumed to inherit under intestate succession laws, they have no right to an inheritance if you have a legal will. If you believe your children should not receive an inheritance, you can donate their share to charity or leave it to someone else. The decision is entirely up to you.
Regardless of what you decide, you need to be specific with the language in your will. If your will does not state that you’ve intentionally left no inheritance for all of your children or one specific child, those who’ve been disinherited can contest on the grounds that they were unintentionally excluded. They could also potentially decide to contest on the grounds that the will was fraudulent, you were incompetent while making the will, or you were under undue influence by a third party who stood to benefit from their disinheritance.
Disinheriting Your Grandchildren or Other Relatives
Grandchildren and other relatives with no presumed right of inheritance can be disinherited by simply omitting them from your will. They do not need to be specifically named to be prevented from receiving a share of your assets.
If you are unmarried and have no children, however, intestate succession rules may state that your parents or siblings have a claim to your estate. Your attorney can advise you on the best way to proceed if you do not want these individuals to inherit any of your assets.
Reducing the Potential for Conflict
Regardless of your reasoning, leaving a family member out of your will is likely to create significant conflict. In addition to potential legal battles, there could be hard feelings that result in lasting tension between the surviving members of your family.
Writing a letter that explains your decision can often reduce the risk of estate litigation and help all of your heirs move forward peacefully. Place the letter in a safe location with instructions to have it read with your will.
Disinheriting by Leaving Property Outside Your Will
In some cases, it may be possible to disinherit a family member without stating your intention to do so in your will. Property that passes out of probate such as retirement accounts or life insurance policies is distributed according to the beneficiary designation. While most people do name a spouse or child as the beneficiary for these types of accounts, there is no law requiring you to do so.
Do You Need To Speak With A Lawyer About Estate Planning?
If you need to speak with an experienced estate planning lawyer please contact us online or call our Virginia Beach office directly at 757.490.3500 to schedule your free consultation. We have offices throughout Virginia including Chesapeake, Newport News, Norfolk and Suffolk.