Disinheriting: An Extreme Step For Rare Occasions

tienne • Oct 06, 2022

One thing that can motivate people to create an estate plan is a desire to reduce or eliminate the share of their estates that some family members will receive relative to others. There can be lots of different reasons for disinheriting somebody. Some rooted in animosity — a desire to ensure that a family member that you don’t like doesn’t get any part of your estate. Others based on concern — not wanting a child struggling with a drug addiction to suddenly have access to thousands of dollars. Sometimes, it can even arise out of a desire to help — cutting a disabled child out of a will so that he or she doesn’t get disqualified from receiving government benefits.


Whatever the reason though, disinheriting a close family member is an extreme step that can have many unintended consequences, even when the decision seems justified and the motives pure. As this article illustrates, disinheriting should be treated as a deep fallback option, utilized only after you have considered other ways to accomplish your goals. There are almost certain to be at least a few. If you do think you want to disinherit a family member, consider the following issues.

is disinheriting an option?

If the person that you are trying to disinherit is your spouse, your state may have laws that prevent it. A lot of states require a certain portion of your estate to go to your spouse, regardless of what your will says. This often becomes an issue in two situations.


First, when the deceased and his or her spouse were living separately from one another at the time of death, but hadn’t completed a divorce.


 Second, when the deceased was married at the time of death, but wanted his or her estate to go to kids from a prior relationship. If you want to cut a spouse out of your will, you probably either need to get that spouse’s written permission, divorce that spouse, or create a trust to disburse your assets in the way that you want.

Is disinheriting going to cause family strife?

Even if you have a bad relationship with certain family members, those family members still might get along with other family members that you don’t mean to punish. Disinheriting some family members while lavishly rewarding others is almost certainly going to at least lead to some awkward Thanksgiving encounters after you’re gone, if not worse. It may feel cathartic to imagine the looks on the faces of family members who you haven’t gotten along with when they realize that they aren’t getting anything, but you should also consider the awkward position into which you may be putting the family members who do receive your assets.
Are they going to feel guilty every time they see their disinherited siblings? Worse yet, are they going to get sucked into litigation with their own family members? Disinheriting a close family member substantially increases the chance that your estate plan is going to get challenged in court. Estate and trust litigation is a mushrooming industry. While litigation is never fun, it tends to be a particularly ugly, drawn out, and expensive experience when it’s not just money involved, but family emotions too.

Do you really know the financial situations of those who you are cutting out of your estate plan?

Sometimes, people decide to disinherit a child because they assume that the child doesn’t need the help, and maybe there are other children that do. That can be a dangerous assumption to make. Even if you’re right about your children’s financial situations at the time that you’re planning your estate, those situations may change dramatically in ways that you couldn’t possibly have foreseen after you’re gone. 

If control really is needed, consider a trust

If your reason for disinheriting someone is based on a legitimate need for control — such as preventing a drug addict from receiving unfettered access to substantial funds or not wanting to disqualify a disabled child from receiving government benefits — consider setting up a trust instead. Trusts are flexible and often give you a way to accomplish your goals without the permanence that disinheriting someone entails. 

If you do disinherit a family member, revisit that decision frequently

As bad as being disinherited can be, it’s worse if the decision was based on a situation that changed while the deceased was still alive. Finding out that your brothers and sisters are receiving money and gifts that you aren’t because of a drug problem that got solved or because of a frayed relationship that got mended can be a particularly bitter pill to swallow. If you do decide to disinherit a family member, it is critical that you reevaluate that decision frequently.

what next?

If you think it might be time to think through your estate plan, you can:
  1.  Give us a call at 720-821-7604 to schedule a "Discovery Session" at which we can determine whether our firm would be a good fit for your needs. Or fill out our contact form to have us call you.
  2. Visit our estate planning page to learn more about how proactively thinking through your estate plan can protect you and your family, minimize hassle, lower the chance of family discord, and minimize or eliminate taxes.
  3. Learn more by reading our blog or watching our videos .

The Probate Process in Colorado

30 Apr, 2024
The Probate Process in Colorado

When and How Often Should You Update Your Estate Plan?

By Dan McKenzie • 04 Apr, 2024
The most common questions we get about estate planning are when to start it and how often to update it. Learn more about how we advise our clients on these questions here.

The Importance of Estate Planning: Avoiding Probate and Protecting Your Assets

By Dan McKenzie • 29 Mar, 2024
Proper estate planning is not just about saying who gets what when you die. Done correctly, it can help you avoid court and maintain privacy.

Understanding Probate in Colorado: The Guide to Timelines, Steps, and What to Expect

By Dan McKenzie • 28 Feb, 2024
If you have recently lost a loved one, you might find yourself participating in a probate process, either as the executor or a beneficiary. Learn more about what to expect from that process here.

Sharing Your Estate Plan: A Delicate Balance

By Dan McKenzie • 04 Feb, 2024
One of the most common questions we receive is whether or not to share the details of an estate plan with adult children. This decision is personal and can have far-reaching implications for the individual and their family. The Benefits of Sharing Your Estate Plan Sharing your estate plan with your adult children can be beneficial. Doing so allows the family to discuss the plan's details, including what needs to be done in the event of incapacity or death. This open communication can help set expectations and facilitate a smooth estate administration process. A discrepancy between the plan and what the family expected is one of the most significant sources of tension and difficulty during the estate administration. It can be helpful to identify and resolve the discrepancy while the person who can change the plan can either still do so or explain why they designed the plan the way they did. Our firm generally recommends communication with fiduciaries and beneficiaries about the plan. However, communication does not necessarily mean sharing the complete draft of the estate plan. The Risks of Sharing Your Estate Plan While there are benefits to sharing your estate plan, there are also potential drawbacks. One of the main concerns is that sharing the estate plan can create difficulties if the plan is changed after it has been shared. This can be particularly problematic if any of the beneficiaries of a previous plan will receive less from the new plan. Another risk is the possibility of inconsistent plan drafts circulating after death. This can lead to confusion and potential disputes among beneficiaries. Suggestions for Communicating Your Estate Plan Given these considerations, here are some suggestions on how to best communicate the details of your estate plan: Maintain a Record : Record what has been shared, who it has been shared with, and when it was shared. This can help ensure everyone is on the same page and minimize potential misunderstandings. Share Digital Copies : Consider sharing digital copies of your estate plan, accompanied by a cover letter or mark reminding everyone that the plan can change. This can help mitigate the risk of outdated drafts circulating. Provide a Summary : Instead of sharing the entire plan, consider providing a summary. This can give your family a general idea of your intentions without divulging all the specifics. Again, include a disclaimer that the plan can change. Remember, every situation is unique, and what works for one family may not work for another. It’s essential to weigh the benefits and risks before sharing your estate plan. As always, we’re here to help guide you through this process. Please note that this blog post is intended for informational purposes only and does not constitute legal advice. Always consult a qualified estate planning attorney for advice on your situation.

Contesting a Will in Colorado: A Simple Guide

By Dan McKenzie • 29 Dec, 2023
If you are unhappy with the terms of a will, you may have the right to challenge it in court. However, contesting a will is not easy and requires certain legal grounds and procedures. This blog post explains the basics of how to contest a will in Colorado, including who can do it, what reasons are valid, and what steps are involved.

What to Do If You Think Your Trustee Is Not Doing Their Job Right

By Dan McKenzie • 26 Dec, 2023
Explore the essential steps to take when a trustee is not fulfilling their duties effectively. This guide provides practical advice on identifying trustee shortcomings and the legal actions available to address them. Ensure your trust is managed properly with our expert insights on trustee responsibilities.

What is the Formal Probate Process in Colorado and When Do You Need It?

By Dan McKenzie • 24 Dec, 2023
The blog post outlines the formal probate process in Colorado, detailing when it's necessary and the steps involved. It serves as a guide for individuals navigating the legalities of estate management after a loved one's passing. The content is informative and designed to assist users in understanding the complexities of probate law in Colorado.

How to Start an Informal Probate Process in Colorado

By Dan McKenzie • 24 Dec, 2023
Discover the straightforward steps to initiate an informal probate process in Colorado with our concise guide. Learn what information is required for the application, including personal details of the decedent and your connection to the estate. Understand the importance of meeting the time limits for filing and find out how to navigate the process without a court hearing, all explained in simple terms. Ensure a smooth probate journey with our expert insights on Section 15-12-301 of the Colorado Probate Code.

What To Do With the Will of Someone Who Has Passed Away in Colorado

By Dan McKenzie • 21 Dec, 2023
What happens to the Will of someone who has passed away in Colorado? Learn about the custodian’s duty to deliver a will promptly and to the correct probate court, ensuring your loved one’s wishes are honored. Discover the importance of acting swiftly and accurately in the probate process to preserve legacies and avoid legal repercussions.
More Posts
Share by: