How to Disinherit Someone in Your Estate Plan

Disinheriting someone means leaving them out of your estate plan – either via a will or trust —intentionally preventing that person from getting any of your assets or property when you die. It’s a heavy decision that can stir up a lot of emotions, but there are times when a person feels it’s necessary to disinherit a family member or would-be heir.

In this article, we’ll dig into the details of legally disinheriting someone in your estate plan. We’ll cover the common reasons for disinheritance, the limits on who you can disinherit, the mechanics of doing it, and how to prevent challenges to your wishes down the road.

Reasons You May Want to Disinherit Someone

People have their own deeply personal reasons for disinheriting a relative. It often stems from a strained or estranged relationship. Sometimes, it’s because of the heir’s history of reckless spending, substance abuse, or other irresponsible behavior.

In other cases, you may have already given the person substantial gifts during your lifetime and want to leave more to needier heirs. Some people disinherit a child who they’ve already helped a great deal financially to “even things out” with their other children. Disapproval of certain lifestyle choices is another motivation we sometimes hear.

There’s no one-size-fits-all explanation. The decision to disinherit is deeply individual. Whatever your reasons, it’s important to put your wishes down in legal documents. Verbal instructions alone won’t cut it.

Understand the Legal Limitations on Disinheritance

If you’re thinking about disinheriting someone in Texas, keep in mind that Texas law places some limits on your ability to do so. For instance, you usually can’t completely disinherit a spouse.

Texas, being a community property state, does not have an “elective share” law. According to the Texas Family Code § 3.002, each spouse owns a one-half interest in the community property.

If a deceased spouse attempts to dispose of more than their share of the community property through a will, the surviving spouse must choose between accepting the terms of the will or asserting their right to their own share of the community property, forgoing any bequests made in the will.

That said, you’re generally free to disinherit children, grandchildren, siblings, or other relatives who aren’t your spouse. The key is to do it the right way in your estate plan.

Ways to Disinherit Someone in Your Estate Plan

Here are the three main ways to disinherit an heir in Texas:

Include a Disinheritance Clause in Your Will

One method is to put a disinheritance clause in your will. This is a paragraph that explicitly states your intent to leave someone out. It might say something like:

“I have intentionally and with full knowledge chosen not to provide for my son, John Smith, in this Will, and it is my desire that he receive no portion of my estate.”

The clause should specifically name the disinherited party. A general statement like “I leave nothing to any family member not named in this will” may not be good enough.

Use a Living Trust

Another disinheritance tool is a living trust. This is a legal arrangement where you put assets into a trust during your lifetime. You name a trustee to manage the trust assets and spell out who should receive those assets after your death.

The key advantage of a trust is that, unlike a will, it’s not subject to probate. Probate is the court-supervised process of distributing someone’s estate after death.

By leaving someone out of your trust, you can more definitively block them from inheriting your trust assets. You can also list someone that you wish to be specifically disinherited, thereby removing the possibility of a claim that “Oh, it must have been an oversight, and they simply forgot to add my name.”

Give Away Assets During Your Lifetime

A third “disinheritance” strategy is to give away assets to your heirs while you’re still alive, in the amount and proportion you see fit. By reducing the pool of assets up for grabs at your death, you effectively cut out the unwanted heir.

As of 2024, the IRS allows you to gift up to $18,000 per person per year without triggering gift tax. If you’re married, your spouse can separately gift $18,000 to the same person. You can give away even more using your lifetime estate and gift tax exemption, which in 2024 stands at $13.61 million per person.

Spend it All

A fourth “disinheritance” strategy would be to simply enjoy the fruits of your labor, travel, donate to charity, try out that fancy five-star restaurant, or whatever it may be. This is obviously not the most financially responsible thing to do, but if you do pass with little to no assets, you have effectively disinherited someone!

Take Steps to Prevent a Legal Contest of Your Estate Plan

Here’s the harsh reality: when someone expects an inheritance and finds out they’ve been cut out, they may try to challenge your will or trust in court. They might claim you were pressured into it, lacked mental capacity, or fell victim to someone’s undue influence.

You can’t stop someone from filing a lawsuit. But you can deter them and improve the odds that their case will fall flat. Consider taking these steps:

• Insert a “no-contest clause” in your will or trust, however, ills are much easier to contest than trusts, generally speaking. This is a provision that penalizes anyone who challenges the document and loses. Usually, it says that the unsuccessful challenger will inherit nothing at all.
• If you are concerned about incapacity in the slightest, have a doctor evaluate your mental capacity at the time you sign your will or trust. Take a cognitive test if necessary. Get their professional opinion in writing. This can neutralize claims that you didn’t know what you were doing.
• Work closely with an estate planning attorney to make sure your documents are properly signed, witnessed, and in full compliance with Texas law. Any flaw in the signatures or legal language can open the door to a challenge.

Communicating Your Decision to Disinherit Someone

Disinheriting a close relative can be a bombshell. It may come as a shock to them and other family members. The revelation could stir up drama, hurt feelings, and tension that lasts for years.

One way to soften the blow is to have a conversation with the disinherited person during your lifetime. Explain your decision face-to-face or in a letter. Lay out your reasons if you’re comfortable doing so.

While you’re free to leave your assets to whomever you wish, clear communication can go a long way in preventing family strife down the line. At a minimum, make your wishes crystal clear in your estate planning documents.

Do you need help navigating disinheritance? Contact The Cleverly Law Firm, PLLC. For years, we’ve helped Texans craft estate plans that put their goals and values first. We’re here to guide you through the process with wisdom, sensitivity, and air-tight legal documents.