By JEFFREY J. MCKENNA
What if you want to make sure someone DOES NOT get your assets after you die?
Even though the word “disinherit” may conjure up images of family discord, there are many reasons one may wish to do it. Perhaps one of your children is a wealthy entrepreneur and another has special needs, or perhaps you are in a second marriage and want to provide for your children from a previous marriage – but not your ex-spouse. Disinheriting anyone other than members of your nuclear family is easy – just leave them out of your will. But states have special protections for spouses and children.
Spouses. If you live, or have lived in, a community property state like Arizona and Nevada, the law assumes that your spouse automatically owns half of everything you both earned during your marriage.
There are ways to define money that is yours, separate from the community property, to make sure it goes where you want when you die. However, in order to do that, both spouses must sign a written agreement that explains which assets belong to each partner separately.
There are rules that may apply when attempting to separate commingled funds, that is, funds of each spouse that have been deposited into a joint account. Therefore, it is important to consult an attorney to make sure that there is no question or misunderstanding that may cause conflict when you least expect or need it.
Other states give your spouse the right to claim a prescribed portion of your estate, no matter what your will provides, or even if you have a will at all. In these cases, it is impossible to completely disinherit a spouse, unless your spouse is willing to sign a marital agreement waiving his or her right to your estate.
Ex-spouses. Your ex-spouse has no claim to the assets of your estate, unless he or she has some claim against your estate before you die, such as a court order that has awarded a portion of a retirement benefit or pension. It would depend on how the assets were separated at the time of the divorce.
Significantly, insurance policies with an ex-spouse inadvertently left as beneficiary take precedence over a will that leaves those same assets to another.
Children. In most cases, you can disinherit a child or grandchild simply by stating so in your will. However, simply omitting to mention a child does not automatically disinherit a child. The omitted child can contest the will if you do not make your wishes clear. Most states have laws that protect against accidental disinheritance; for example, if a child was born after you drafted your will. Again, unless you specifically state that the child is disinherited, the child will be legally entitled to the same share as the other children.
Disinheritance is a personal issue. One who wishes to disinherit a family member may find that there are other effective options, such as putting assets in a trust for that heir, with a trustee making the decisions of what the money can, and can not, be used for. It is wise to consult an estate planning attorney before making decisions that affect the distribution of your estate and the harmony of your family, once you are gone.
Jeffery J. McKenna is a local attorney serving clients in Nevada, Arizona and Utah. He is a shareholder at the law firm of Barney McKenna Olmstead & Pack, with offices in Mesquite and St. George. If you have questions you would like addressed in these articles, you can contact him at (702)346-1615 or jmckenna@barney-mckenna.com.
