A last will and testament gives you the power to decide who will inherit your property after you die. North Carolina law affords a person broad discretion in exercising this power. This includes the right–with some limitations–to disinherit family members.
Disinheriting Adult Children
Indeed, a common question we get is, “Can I disinherit a child in my will?” With respect to adult children, the answer is usually yes. Nothing in the law requires you to leave any property to an adult child or other descendant if you do not wish.
There are many reasons why a parent might choose to disinherit a child. Some of the more common ones include:
- Lack of relationship. The parent and child may simply no longer have any relationship–assuming they ever had one to begin with. This can include cases of parental abandonment. But it may also be a simple case of estrangement or both parties choosing to live their lives apart.
- Previous provisions. In some estate planning situations, a parent may actually choose to gift property to a child during the parent’s lifetime and thus exclude the child from receiving any additional property under their will. While this is still technically a “disinheritance,” the parent typically uses their will to make provisions for other children or family members to “balance things out.”
- Disapproval of lifestyle choices. Parents will often use disinheritance to express disapproval of their children’s lifestyle or certain choices they have made about their life. This can range from concerns over a child’s wasteful spending habits to the fact they are a member of the LGBTQ community. In some cases, a parent may even disinherit a child because they disapprove of the child’s choice of a spouse or career.
It is important to note that all of these reasons are legally valid. In fact, a parent does not have to even state a reason for disinheriting a child in their will. For example, in a recent North Carolina probate case, In re The Matter of the Estate of Paxton, a father disinherited his son, stating in his will it was “for reasons known to [the son].”
Can a Child Contest a Will Based on Disinheritance?
The Paxton case is also instructive as the disinherited son challenged the will in court. Now to be clear, a child cannot initiate a challenge–known as a caveat proceeding in North Carolina–on the grounds they were excluded from the will. Rather, there must be some alleged defect in the will itself, such as that the parent lacked the legal capacity to make the will or that the will was a product of “undue influence” by a third party. (In Paxton, the son unsuccessfully argued that his father’s friend–the primary beneficiary of the will–allegedly exercised undue influence.)
If a caveat proceeding succeeds, however, a disinherited child could stand to benefit. In the absence of any valid will, a parent’s estate is subject to North Carolina’s intestacy laws and children generally inherit from the intestate estate of a parent, regardless of the quality of their relationship during the parent’s lifetime.
Can Someone Disinherit Their Spouse?
This is a much more complicated question. North Carolina law allows the surviving spouse to claim an “elective share” of the deceased spouse’s estate. This share is a percentage of the estate based on how long the marriage lasted. For example, if the marriage lasted between 10 and 15 years, the surviving spouse’s elective share would be 33 percent.
The elective share overrides any contrary language in the deceased spouse’s will or North Carolina intestacy law. So if a person were to try and exclude their spouse entirely from their will–or leave them less than the elective share they are entitled to by law–the surviving spouse can still claim their elective share.
But there are a couple of exceptions to the elective share rule. The first is that the surviving spouse must claim their elective share within six months of the deceased spouse’s death. Thus, if the surviving spouse does not act in time, then they are at the mercy of the deceased spouse’s will. The second exception is that a surviving spouse can waive their right to an elective share as part of a pre- or post-marital agreement.
Speak with a Monroe, NC Probate & Estate Administration Lawyer
If you are involved in any dispute regarding disinheritance or a related probate matter, it is essential that you work with legal counsel experienced in this area of the law. The team at Plyler, Long & Corigliano, LLP, can advise you on a wide range of Union County, North Carolina, probate and estate administration matters. Contact us today to schedule a consultation.