Disinheritance and Other Facts

The general rule with disinheritance is that a person drafting a will can write a spouse or child out of the will. However, there are certain laws that can make it quite difficult to disinherit either a spouse or child. 

Children do not have a right to inherit from their parents; however, there are certain protections that are carved out for them. A child that is born after a will is executed can still receive a portion of the estate. This is even the case if the parents never alter their will to include their new child. The omission of the child from the will cannot appear intentional, otherwise a child will receive nothing. Also, the inheritance tax does not apply to transfers that are made to children or grandchildren.

Spouses have a few more protections than children. In Iowa and several other states, a spouse has right to take an elective share of the estate instead of what he or she would receive under the will, regardless of whether the spouse will receive anything under the will. There is one exception to the rule and that is with prenuptial agreements. There are also uncertainties about the what assets are subject to the elective share. For example, in Iowa, it is unclear whether the elective share can reach life insurance or retirement assets.

See Jana M. Luttenegger, Can I Write My Children and/or Spouse Out of My Will?, JDSupra, Apr. 24, 2012.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.