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Estate Planning: Rights of Disinherited Family Members
By now, you should recognize the importance of having a legally enforceable will. However, creating a will is by no means the "be-all and end-all" in estate planning. In particular, some members of your immediate family may be able to stake a claim to your estate, even if they have been excluded or limited to a small inheritance according to your will.
This is an area where state law is generally controlling. Here is a brief summary of the relevant rights of family members.
Rights of spouses: The rule of thumb is that you cannot cut a spouse completely out of a will. For instance, in community property states, a surviving spouse is essentially entitled to half of the deceased spouse's earnings during the marriage absent any written agreement to the contrary.
In the other states, there is no rule that says that property acquired during marriage is "owned" by both spouses. Nevertheless, most states provide protection to a surviving spouse regardless of what is stated in the will. Typically, the spouse can claim from one-fourth to one-third of the deceased spouse's estate. The length of the marriage may be a deciding factor in this determination. Note: These provisions are triggered if the survivor goes to court to claim the appropriate share. Otherwise, the will is followed.
Rights of ex-spouses: As a general rule, a divorce automatically revokes transfers made to the former spouse through the provisions of a will. However, to be on the safe side, it is recommended that a new will be drafted that leaves out the ex-spouse if that is the intended result.
Rights of children: Unlike a spouse, children have no right to receive an inheritance, except in extremely limited circumstances. However, many states have enacted rules protecting children from "accidental" disinheritances. This often occurs when a child is born after the creation of a will, but has not been added to the list of beneficiaries through a codicil. Result: State law may presume that the deceased intended to include all of his or her children.
As you can see, it is important to amend your will to reflect any significant changes in your circumstances. This is the best way to ensure that your assets will be distributed according to your wishes, without running afoul of state law. Coordinate your estate plan with your key advisers.