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Business & Commercial Law : Estate Planning & Litigation : Bankruptcy

A disinherited family member can sometimes contest a loved one’s will

On Behalf of | May 31, 2024 | Will Contests

Probate litigation related to concerns about the validity of a will are somewhat common. The surviving family members of individuals who die sometimes take issue with the contents of a will. They may suspect fraudulent changes to the document or may believe that a family member exerted undue influence on the testator. Other times, someone’s health challenges or age could contribute to litigation related to a potential lack of testamentary capacity.

There are a handful of other, less common reasons why people sometimes challenge or contest the estate plan created by a family member. Someone who expected to inherit from an estate but discovers that the decedent left them nothing could potentially have grounds to contest the will in one of two primary scenarios.

When the disinheritance was unintentional

Choosing to disinherit someone typically requires mentioning that decision within estate planning documents. If someone has three children and only leaves an inheritance for two of them, the third child could potentially contest the estate plan by asserting that their omission from the documents was a mistake. Some testators sidestep this particular probate pitfall by mentioning the decision to disinherit someone in their will or leaving them an asset of negligible value. Those who can claim that a disinheritance was unintentional may have grounds to contest a will.

When the disinherited person is a spouse

Technically, children and other extended family members only have protected inheritance rights if someone dies without a will. Intestate succession laws protect the rights of children. However, if a testator leaves behind a will, they have the right to allocate their assets among their surviving family members as they see fit within reason.

Parents and grandparents can choose to disinherit the generations that follow them or to skip one generation in favor of the next. However, it is generally not legal or appropriate for a married individual to disinherit their spouse. Spouses have shared property rights under marital property statutes. A spouse completely disinherited by an estate plan could theoretically initiate probate litigation to request their appropriate share of the marital property.

Those who feel surprised and disappointed by their exclusion from a will can sometimes contest a will to remedy that issue. Taking legal action to contest a will could help someone obtain an inheritance when the document does not bequeath any assets to them but it is clear that it should have.