How Do I Cut Someone Out of My Estate When I Die?
When a client expresses such sentiments to me, I ask my clients if she really wishes to cut a family member out of her estate after the client has died? Often, the family member to-be-disinherited has erred in some manner: suffered substance abuse, behaved irresponsibly with their money, or injured the client emotionally. I ask clients to take a longer view of their concerns, and to ask whether she wishes her legacy with the errant loved one to be a final word of disapproval. I encourage clients to put language in their Wills that expresses their concerns, expressions that show intelligence about the problems at hand and compassion and hope about their resolution. When my client dies, grief will hit hard for the erring family member, just as it does all family members. Does my client wish to exacerbate that difficult moment? I believe that family therapy or facilitative mediation might bridge the chasm between my client and her family member. In my view, such efforts are always a more constructive outlet for frustration.
For some, however, no alternative to disinheriting a family member seems workable. The anger and injury need expression, and for reasons sufficient to herself, my client must express those concerns in her Will.
To disinherit a family member, one makes a Will that makes no gift to that person. If one wishes, one can make the non-gifting express by stating that the testator recognizes that under normal circumstances a gift would be made to the erring family member, but in this circumstance no gift is being made to that person.
Disinheriting a family member increases the likelihood that the disinherited person will be dissatisfied with the client’s estate plan. The disinherited person may challenge the client’s Will. Because of this heightened likelihood, I always recommend an in terrorem clause in Wills that disinherit family members.
A CAUTION: One may disinherit a legatee inadvertently by executing a community property agreement. One should carefully coordinate one's Will with the provisions of a community property agreement. A community property agreement takes precedence over an inconsistent Will dated before the community property agreement. Estate of Lyman, 7 Wash. App. 945, 503 P.2d 1127 (1972), affirmed, 82 Wn.2d 693, 512 P.2d 1093 (1973). If a person’s Will contains a gift of that spouse’s half of community property to some person other than the testator’s spouse, that gift will be defeated by a community property agreement.