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How and Why to Disinherit a Family Member in your Estate Plans

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For many reasons, an individual may need to disinherit a family member in their estate plans.  This could be for tax purposes, creditor protection, or you want to specifically exclude someone form inheriting your wealth.  If you are considering disinheriting a family member, then there are several things you should know.

If you die without creating your own estate plan, your “heirs” will be determined by the laws of the state in which you reside.  Without establishing a valid estate plan, you have no control over who inherits your estate.  Only when you create an estate plan do you select who your beneficiaries, or “heirs,” will be.  Therefore, by creating your own estate plan, you may disinherit someone who would otherwise take a share of your estate under the intestacy laws of your state.

Tips to Disinherit A Family Member

If you want to disinherit a family member, it is important to contact a lawyer to help you so it is done legally.  When a relative is disinherited, litigation often follows, so it is important to plan for this carefully.

If you want to prevent one or more of your relatives from inheriting your assets, here are few tips to follow:

  1. First and foremost, in Florida, you cannot disinherit your spouse! Unless a premarital or post-marital agreement is executed, a spouse is entitled to the Florida spousal elective share. This means if you try to disinherit your spouse, they are entitled to at least 30% of your entire estate.  This includes probate and non-probate assets.  The only way to avoid this is if the spouse signs a waiver (typically through a premarital agreement) to their rights in the elective share.
  2. Do not have probate assets at the time of your death. Probate assets are only those assets that were in the decedent’s individual name at the time of his or her death.  If the decedent’s assets are transferred through joint ownership, beneficiary designations, or a trust, then no probate is needed to transfer assets.   It is still possible to challenge this type of plan, but it is more difficult.
  3. Florida does not recognize “no-contest” clauses in someone’s Will or Trust.  A “no-contest” clause is a provision that states if an individual tries to contest any part of your Will or Trust, they will be disinherited from any provision under the estate plan.  If you think adding such a clause will prevent a disinherited family member from challenging your Florida estate, you are wrong.
  4. Provide a separate letter of intent explaining your reasons for disinheriting someone.  Although it is very important to understand the context behind disinheriting a family member, you should be careful that this letter is not defamatory, revengeful, or false.  You do not want the letter to do more harm than good.

If you are considering your options to disinherit a relative, contact our lawyers at Legacy Protection Lawyers, LLP, at 727-471-5868 to get a case review.

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