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Can I disinherit my family member?

On Behalf of | Jan 11, 2024 | Estate Planning & Elder Law

Estate planning is a complex and sensitive process that involves legal and personal decisions. One question that comes up when creating a will is whether they can disinherit a family member, like a child.

Disinheriting a spouse

In Virginia, it is nearly impossible to dissolve a surviving spouse’s claim on an estate. A disinherited spouse may have a claim to what is called the “elective share”. Due to recent legislation, surviving spouses can now claim up to half of a decedent’s augmented estate, even if there are multiple children with a claim, if left out of the decedent’s will.

Whether a spouse is entitled to one-third or one-half of the decedents augmented estate depends on whether there are any surviving children. And, the only time a spouse would forfeit an inheritance are, generally, if he or she waived his or her claim voluntarily, failed to present a timely legal claim or through a prenuptial agreement.

Disinheriting a child

This is not the case for children, but, to do so, a parent will need to explicitly name that child in a will and include their desire to disinherit him or her. Most include the reason for disinheritance in the will to help avoid arguments after death of undue influence, lack of testamentary capacity, fraud or duress. Though, including the disinheritance reason is not required.

How can a spouse force another spouse to take a child out of their will?

They cannot force you to do this. If you and your spouse have agreed to disinherit a child from your wills, you should make sure that your wills are consistent and clear about your intentions. However, if you and your spouse disagree about disinheriting a child from your wills, you may face some difficulties. Your spouse cannot legally force you to change your will or to take a child out of your will. Your will is your own personal document that reflects your wishes and preferences.