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By Roy Schneider, Esq.

Inheritance laws involve legal rights to property after a death and such laws differ from state-to-state.   Heirs usually consist of close family members and exclude estranged relatives.  Depending on the wording of a will or trust, an individual can be intentionally, or even unintentionally, disinherited.

In most cases, spouses may not be legally disinherited from his or her share of the community property and, even in some cases, from the deceased spouses separate property.  Certain contracts, however, may allow for a legitimate disinheritance, such as prenuptial agreements or post-nuptial agreements.  These contracts are typically valid methods of disinheritance because the presumed-to-be inheriting spouse has agreed to the arrangement by signing the document.  Usually, the spouse to be disinherited receives other consideration in exchange for giving up spousal rights.

If there is no prenuptial arrangement, then some states have elective share statutes or “equitable distribution” laws that are designed to protect the surviving spouse.  Pursuant to the elective share statutes, he or she may collect a certain percentage of the estate.

In states like California that follow “community property” rules, however, the outcome may be different.  An experienced Estate Planning attorney at Schneiders & Associates, LLP, should be consulted for clarification of the differences in the law in California and how community property laws affect the rights of spouses on death. Divorces affect spousal inheritance rights.  Post-divorce, it is prudent to consult an attorney to draft a fresh will or trust, in order to prevent confusion and unintentional dissemination of assets.  Keep in mind that if you have a trust or will and then get married, but don’t make changes subsequent to marriage, the spouse may be entitled to his or her intestate share upon death, which may not be what the deceased spouse intended.

If the will or trust is unambiguous, it is usually possible for a child to be disinherited.  It is never a good idea to simply fail to mention such child.  Children born after the will or trust is made, and is not mentioned or disinherited by a latter instrument, will be entitled to his or her intestate share.   It should be noted, however, that it is highly likely that close relatives will challenge or contest a will or trust in which they have been disinherited.  Fighting such a lawsuit may put a great financial strain on the estate’s assets.  Depending on how time-consuming and expensive it is to defend the will, less money may be available for distribution to the intended beneficiaries.

There are ways to protect estate assets from such problems, for example through well drafted trusts.  It is essential for an individual to receive the counsel of an experienced estate planning lawyer in order to effectively protect his or her estate as inexpensively as possible.  If you have questions or wish to discuss your estate planning needs, please contact Schneiders & Associates, LLP for an appointment.

About the Author
Theodore J. Schneider practices in the areas of business and corporate transactions, employment law counseling, municipal and public law, real estate and land use, and homeowner associations. Ted began his legal career in 2002 when he joined the Los Angeles office of Gibson, Dunn & Crutcher, L.L.P. before relocating to Ventura County to join his father in practice.