Wills are a useful tool for estate planning, but they are not the ultimate authority for dividing an estate. Certain state and local laws may supersede the wishes a decedent leaves in a will, and other contracts and agreements may override it. For example, if the decedent has named beneficiaries in insurance policies, a will cannot override those decision.
Thus, residents who plan to disinherit someone in a will, for any reason, should understand the laws that may compromise this decision and how to plan appropriately.
Knowing who has a claim to a the estate
In addressing questions of inheritance, it is helpful to understand who has a legal claim on an estate. If a man dies intestate, the State of Virginia has specific protocols for distributing his property. The estate would first pass to any surviving spouse, and then the remaining portion would pass to children equally. Absent a surviving spouse, the estate would pass straight to any surviving children — an even portion to each. If any of those children have passed away, grandchildren would then receive even portions of their parents’ share. Absent this, his estate would go to the next closest relative — to parents, first, then siblings, and so on.
Thus, nonfamily has no default claim on an estate, and extended family has a claim only if they are next of kin. This means that the simplest way to disinherit most people is to simply not mention them in the will. However, for family members who have a claim on the estate, a decedent would need to intentionally and clearly express the wish to disinherit them.
Disinheriting a spouse
Virginia residents do retain the right to disinherit a family member with a few exceptions.
As the Virginia State Bar Association explains, it is nearly impossible to dissolve a surviving spouse’s claim on an estate. Due to recent legislation, surviving spouses can now claim up to half of a decedent’s estate, even despite having children with a claim. The exact amount the spouse can claim depends on several factors such as the length of the marriage. Essentially the only times a spouse would forfeit an inheritance are if he or she waived his or her claim voluntarily or failed to present a legal claim in a timely manner, or a couple could have established specific terms in a prenuptial agreement.
Disinheriting a child or other family member
Virginia law does not prohibit disinheriting any other persons, including children. But to do so, a parent will need to explicitly name the child in a will and include the desire to disinherit him or her. He or she may include the reason for disinheritance in the will but does not have to.
Simply omitting someone who has a claim on an estate will not effectively exclude them from receiving an inheritance — state law provides for omitted parties to seek a fair portion by contesting a will.
When disinheriting anyone, decedents should understand that the party will almost certainly contest the decision. To avoid having a court override the will, decedents should take every measure to execute a legally sound will.