The recent dramas of Britain”s Royal Family highlight the momentous step families may sometime face in cutting someone out of their inheritance. Rules on such matters differ across the US. The author – a regular contributor – considers the issues.
The lives of famous people excite prurient curiosity
with their divorces, family disputes and dramas regularly
appearing in the media. The recent decision by the UK’s King
Charles lll to remove the titles of his brother, Andrew – no
longer a prince – is a particularly dramatic case. Beyond the
immediate issues that this story creates, however, it reaises
questions about what “disinheritance” means for families, and how
this applies in countries such as the US.
The author here is familiar FWR contributor Matthew Erskine,
who is also a member of this news service’s editorial board. The
editors here are pleased to share these views; the usual
editorial disclaimers apply. To comment, email tom.burroughes@wealthbriefing.com
and amanda.cheesley@clearviewpublishing.com
King Charles III’s recent decision to strip Prince Andrew of his
royal titles and evict him from his residence has captured global
attention, but it also highlights a reality many families face
but without the royal drama: the complex process of
disinheritance.
Whether you’re a business owner protecting decades of hard work
or a parent navigating difficult family dynamics, understanding
how to properly exclude someone from your estate is crucial
– and far more complicated than simply leaving them out of
your will.
The business case for strategic
disinheritance
In most states, a parent or testator generally has full legal
power to disinherit an adult child, provided the intent is clear
and unambiguous in their will or trust instrument. This power
extends beyond parent-child relationships to any potential heir,
making it a valuable tool for business owners, entrepreneurs, and
high net worth individuals who need to protect their legacy.
But here’s the critical point most people miss: A simple omission
isn’t enough. The will must specifically identify the child to be
excluded and should state that the omission is intentional, not
accidental. This requirement exists because courts assume family
members were accidentally forgotten rather than deliberately
excluded.
The legal safeguards you must navigate
1. Protecting children born after your will
Most states include robust protections for “omitted children”
– those born or adopted after you execute your will. If a
testator did not have living children when signing the will, an
after-born or after-adopted child is generally entitled to a
statutory share that mirrors what they would receive under
intestacy, unless the will leaves “all or substantially all” the
estate to the child’s other parent, and that parent survives and
takes under the will.
This creates a particular challenge for entrepreneurs and
business owners who may start families later in life or through
blended family arrangements. If the testator had living children
and made gifts to them, the omitted child receives a proportional
share based on what the living children receive, drawn first from
the residue and then equally from devises to other beneficiaries.
2. The surviving spouse exception
Here is where most state laws draw a hard line: most states do
not allow a testator to completely disinherit a surviving spouse.
Regardless of what the will states, the spouse may elect to take
against the will and receive a “statutory forced share.”
The financial implications are significant. Typically, if the
decedent leaves issue (children or grandchildren), the spouse is
guaranteed a minimum amount outright plus a life interest in a
portion of the remaining estate. The exact percentages and
amounts vary by state, but the principle remains consistent:
surviving spouses have protected rights that cannot be
circumvented through disinheritance.
What makes this particularly challenging for business owners is
that this share may include some non-probate assets, such as
those held in revocable trusts, making careful planning essential
to avoid unintended inclusion. Your carefully structured business
succession plan could be disrupted if you haven’t properly
accounted for spousal rights.
3. Community property states: A different playing
field
If you live in a community property state (Arizona, California,
Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or
Wisconsin), the rules change dramatically. In these
jurisdictions, each spouse automatically owns a 50 per cent
interest in all property acquired during the marriage, regardless
of whose name is on the title.
This fundamental difference means that disinheritance strategies
must account for the fact that a surviving spouse already owns
half of the marital estate by law.
You can only disinherit someone from property acquired outside of
the marriage and your half of the community property. Attempting
to dispose of your spouse’s community property interest through
your will is not only ineffective, but it can also trigger costly
litigation and family disputes.
Community property states also have different rules regarding
what constitutes separate versus marital property, and some allow
couples to convert community property to separate property (or
vice versa) through written agreements. For business owners in
community property states, this creates both challenges and
opportunities for estate planning that do not exist in common law
property states.
Best practices for bulletproof disinheritance
1. Express your intent clearly
Always expressly state the desire to disinherit an individual;
ambiguity risks statutory intervention. Your will should include
language such as: “I intentionally make no provision for my son
John Doe, and this omission is deliberate and not accidental.”
2. Use multiple tools in combination
Consider using a combination of wills, trusts, and updated
beneficiary designations for thorough implementation. Trusts are
highly effective tools for controlling distributions and
safeguarding from future litigation, especially in complex family
structures or where privacy and asset protection are paramount.
Don’t forget the often-overlooked details: All beneficiary
designations on accounts (insurance, retirement, bank) should
also be reviewed and updated to avoid accidental inheritance.
3. Understand the limitations
Be aware of protections for omitted children and forced-share
rights for surviving spouses – they cannot be circumvented
by omission alone. This is where many DIY estate plans fail,
costing families thousands in litigation and potentially
undermining your intent entirely.
4. Work with experienced counsel
Discuss your intentions with your estate attorney to tailor
strategies, especially in unique family arrangements or
high-value collections. The stakes are too high for generic
online templates when you’re dealing with substantial assets or
complex family dynamics.
The bottom line
King Charles’s formal and public action serves as reminder:
whether royal or ordinary, for a disinheritance to stand, the
process must be as intentional and as well-documented as the
reasoning behind it.
For business owners and high net worth individuals, the lesson is
clear: protecting your legacy requires more than just financial
acumen – it demands legal precision. The difference between
a successful disinheritance and a costly family lawsuit often
comes down to the quality of your planning and the clarity of
your documentation.
Whether you are protecting a family business from a spendthrift
heir or ensuring that your philanthropic vision survives family
disputes, the key is acting deliberately and working with
qualified professionals who understand both the legal
requirements and the family dynamics at play. In estate planning,
as in business, the details matter – and getting them wrong
can be expensive.
Below is a summary table outlining each state’s approach to
disinheritance and statutory share (elective share) for surviving
spouses. Most states allow adults to disinherit children if
stated explicitly in estate documents, but minor children and
spouses are almost universally protected.
Elective spouse shares and omitted child statutes vary widely by
jurisdiction.
— Community property states (Arizona, California, Idaho,
Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin)
automatically give half of marital property to the surviving
spouse, regardless of what the will says.
— Uniform Probate Code (UPC) states (e.g., Alaska,
Colorado, Hawaii, Kansas, Minnesota, Montana, North Dakota, South
Dakota, Utah, West Virginia) use the “augmented estate,” which
blends probate and non-probate assets to calculate the elective
share, generally 50 per cent of the marital portion based on
years married.
— All states include omitted child statutes, protecting children
born or adopted after a will is written unless the omission is
intentional or the child is provided for outside the will.
— Where a statutory spouse share exists, surviving spouses must
proactively elect within time limits (usually six to nine months
post-probate).