How Do I Disinherit a Family Member?

Navigating the Sensitive Terrain of Disinheritance in Massachusetts

In my years as an estate planning attorney, I've had numerous clients walk through my doors with the delicate issue of wanting to disinherit a family member. It's never an easy conversation, but it's a reality of life and estate planning. Massachusetts law provides specific guidelines for disinheriting family members, and understanding these is critical for ensuring your final wishes are honored.

First, let's address a common misconception: the ability to disinherit at will. While you have a significant degree of freedom in directing your assets, there are statutory protections, particularly for spouses, known as the "forced share."

What Is Forced Share?

In Massachusetts, you cannot fully disinherit your spouse unless they agree to it, typically through a prenuptial or postnuptial agreement. The Commonwealth ensures that a surviving spouse can claim an elective share of the deceased's estate, known as the "forced share," which is a portion of the probate estate the surviving spouse is entitled to receive, regardless of the will's provisions.

The specifics can get complex, but essentially, if you pass away and leave a spouse behind, they are generally entitled to a statutory share of your estate. This can range from one-third to one-half of your property, depending on whether you have surviving descendants.

The Mechanics of Disinheritance

Now, beyond the spousal share, if you wish to disinherit another family member, such as a child, you have more leeway. The key to successfully disinheriting a family member in Massachusetts is clear and unequivocal language in your will or trust documents. You can't simply omit a person's name from your will and assume they will receive nothing; the law tends to frown upon what it interprets as accidental omissions. Instead, you must explicitly state your intention to disinherit.

Sensitive Yet Clear Wording

Your will should include a specific statement that you are intentionally omitting the particular individual. For example, "I have previously taken care of my son, John, during my lifetime, and have chosen to leave nothing to him in this will." This wording indicates a deliberate choice and helps prevent John from successfully contesting the will on the grounds of an oversight.

Consider the Emotional Impact

When you're considering disinheriting someone, it's not just about the legal process; it's also about the emotional fallout. Disinheritance can cause rifts in families that last generations. It's a decision that should be carefully weighed and discussed, when possible, with the family members involved and with a skilled estate planning attorney who understands the nuances of Massachusetts law.

When it comes to the delicate matter of disinheriting a family member, the language used in your will must be both sensitive and crystal clear. This is not simply a matter of preference but a legal necessity to ensure that your wishes are honored without ambiguity. Let's delve deeper into the nuances of such phrasing and its importance.

Crafting the Language with Precision

In your Will, the statement regarding disinheritance should leave no room for doubt. It should convey your intention unequivocally while also maintaining a tone of respect. The language must be legally sound to withstand any challenges that may arise during probate.

For instance, instead of a curt "I leave nothing to my son, John," a more thoughtfully worded statement would be: "I have lived a full life and have had the opportunity to provide for my son, John, in many ways during my lifetime. After careful consideration and acknowledging the support previously given, I have made the deliberate decision to allocate my estate differently in this will. This is done with a clear mind and intent, and not due to any oversight or lack of affection."

The Importance of Clarity and Tone

This wording does more than just state your decision; it provides context and rationale. It helps to paint a picture of a thought-out plan rather than an emotional, spur-of-the-moment decision. Such detail is pivotal in the face of potential legal scrutiny, as it demonstrates that you have not made this choice lightly or without consideration of the individual's role and history within the family.

Addressing the Potential for Contest

In crafting your will, it’s also wise to anticipate and address the typical grounds on which disinheritance might be contested. One common argument is that the testator (the person who has made the will) forgot to include the disinherited person or that they were under duress or undue influence. By explicitly stating your mental clarity and voluntary decision-making, you can help to mitigate these claims.

An Emotional Consideration

Remember, the drafting of this section of your will isn't just about legal defense—it's also an acknowledgement of the emotional weight such a decision carries. By choosing your words carefully, you show a level of compassion and understanding, even amidst a decision that might be hurtful to the party involved. It's a balance between legal protection and emotional sensitivity.

Alternatives to Disinheritance

In some cases, it may be wise to consider alternatives to outright disinheritance. Trusts can be a useful tool for controlling how, when, and if a family member receives any assets. For example, you can create a trust that sets specific conditions under which the individual can access funds, perhaps tying distributions to certain milestones or behaviors. 

Learn more about Trusts and which one(s) may be right for you in our FREE report here.

Documentation Is Key

No matter what your final decision is, documentation is critical. Ensure that your will, trusts, and other estate planning documents are up-to-date and clearly reflect your current wishes. It's also a good idea to include a letter explaining your decisions, which, while not legally binding, can provide clarity and context to your executor and beneficiaries.

Consult with an Estate Planning Attorney

Finally, it's essential to work with an experienced estate planning attorney who understands the complexities of Massachusetts law. A skilled lawyer can help you navigate the emotional and legal terrain of disinheritance, ensure your documents are legally sound, and your wishes are clearly expressed.