What To Do When You’ve Been Disinherited?

I have been contacted on multiple occasions by prospective clients who learned after a loved one’s death that they would inherit nothing from the deceased person (decedent). This can be a very painful discovery, particularly if the decedent and the prospect were spouses or close family members. Not surprisingly, the prospect wants to inherit what they feel they are owed. So, what to do when you’ve been disinherited?

It’s important to remember that the government does not recognize a legal right to an inheritance. As a general rule, a person can leave their estate to whoever they want. If they wish to disinherit their child or donate to the Nazi Party, they are free to do so, and the government will uphold their wishes. There are some limited exceptions to this rule.

  1. The omitted child/spouse rule. The government assumes that you want to leave your estate to your spouse and children, unless you have a will or trust that says otherwise. So, if you get married or have a child after creating a will and trust, it’s assumed that you would have included them had they existed at the time the estate plan was created. This rule extends to children who were born before the will and trust were created, but the parent (*cough* father *cough*) wasn’t aware of their existence until after they had completed the estate plan. If the child can show the court that their parent wasn’t aware of their existence at the time they created their will and trust, and would have included them if the parent had known about them, the court will give them a share of the estate. The same rule holds for a surviving spouse who wasn’t married to the decedent at the time their will and trust were created. However, if the will and trust specifically state that the decedent is intentionally disinheriting the child or spouse, then this option won’t work.
  2. Fraud. The court will not uphold a will or trust if it can be proven that the will or trust is fraudulent. Classic examples are forged signatures or altering the contents of the document after it’s been signed. There are experts whose entire job is to spot this sort of activity on legal documents. It’s also why it’s so important to have the original; fraud is much harder to spot on a copy.
  3. Undue influence. If the decedent was pressured into signing the estate plan and it does not actually reflect their wishes, the court will not uphold it. Undue influence can be difficult to prove, so you would need to gather quite a bit of evidence to convince the court that this is what happened. Please see my previous article for more information on undue influence and how to spot it while there’s still time to act.
  4. Lack of capacity. A person has to have legal capacity in order to sign a will and trust. If they are not of sound mind, then they can’t be trusted to understand what they are signing or what the impact of those documents will be. As with undue influence, lack of capacity can be difficult to prove, so if you don’t have a doctor’s evaluation, you’ll have to gather evidence that the decedent did not have the mental ability to understand what they were doing. Please see my previous article for more information on lack of capacity and how to spot it.

These are the major reasons a court will accept for overturning a will or trust. While there are some other possible arguments out there, it will be much more difficult to succeed if you can’t prove one of the above.

If you have questions or would like more information about what to do when you’ve been disinherited, please contact me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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