Deciding to leave someone out of your will — a child, a sibling, a relative — is a significant decision. In most cases, you have the legal right to do it. But doing it wrong can create exactly the outcome you were trying to avoid. Here's how disinheritance works and how to do it correctly.
Your Right to Disinherit
The United States strongly protects "freedom of testation" — the right to leave your assets to whoever you choose. With one major exception (spouses, discussed below), you can disinherit any person, including your adult children, siblings, parents, or other relatives. You can also choose to leave most of your estate to a charity, a friend, or a pet trust, rather than to your family.
This right is not absolute — there are legal mechanisms that can limit it, and the manner in which you disinherit someone matters enormously.
How to Properly Disinherit Someone
Name them explicitly in the will
The most critical rule: do not simply omit someone you intend to disinherit. Many states have "pretermitted heir" statutes — laws that protect people (especially children) who are omitted from a will on the assumption that the omission was accidental. If a child is not mentioned in the will at all, a court may award them an intestate share (as if there were no will) on the grounds that the testator simply forgot.
Instead: name the person explicitly and state clearly that you are intentionally providing them nothing (or a nominal bequest). Example: "I intentionally make no provision for my son, [Name], and this omission is intentional and not due to oversight."
Use a properly drafted will
A handwritten (holographic) will, a form will, or a will downloaded from a general website may not adequately protect a disinheritance. Work with an estate planning attorney, particularly when disinheriting someone likely to contest the will.
Document your capacity and intention
If you anticipate a will contest — particularly if the disinherited person might claim you were unduly influenced or lacked capacity — documentation helps. Your attorney can document your instructions and reasoning; a letter to your attorney (preserved in their file) explaining your reasoning provides a contemporaneous record. Having your physician confirm your capacity at or near the time of signing can also help.
The Spousal Exception
Spouses are uniquely protected in most U.S. states. In common-law property states, the "elective share" allows a surviving spouse to claim a statutory portion of the estate regardless of the will's provisions — typically 1/3 to 1/2 of the estate. In community property states, each spouse owns half of marital property outright; the deceased can only will away their own half.
If you want to limit what a spouse receives (rather than completely disinherit them — which you typically can't do), a prenuptial agreement executed before marriage, or a postnuptial agreement after, can establish different terms — provided it was fairly negotiated and both parties had legal counsel.
No-Contest Clauses
A no-contest clause (also called an in terrorem clause) provides that if a beneficiary contests the will and loses, they forfeit any bequest they were left. This can deter frivolous contests — but only if you leave the potential contestant something meaningful enough to risk losing. No-contest clauses are not enforceable in all states (California enforces them strictly; Florida does not enforce them at all).
Considerations Beyond the Will
Assets that pass outside the will — retirement accounts, life insurance, jointly owned property, and trust assets — are not affected by a disinheritance clause in the will. Review beneficiary designations on all accounts to ensure they align with your intentions.