Q & A : Disinheriting Family Members in Estate Planning

QUESTION: I think that I might want to disinherit a family member in my estate planning documents – how do I go about doing that, and are there any limitations?

ANSWER: Disinheriting someone is not easy, and I mean that both in an emotional sense as well as in a strict legal sense. I won’t get into the emotional part of this decision, as that is highly personal to someone. But on the legal side, there a few important limitations to be aware of.

First of all, it is nearly impossible to totally disinherit your spouse without your spouse’s consent. Michigan law gives a surviving spouse the option, regardless of what your will says, to take an “elective share” of your probate estate equal to approximately one-half of the amount that he/she would receive if you died without a will. This amount is determined under Michigan law relative to who the other surviving family members are, and then the amount is subtracted from the value of any property that passed to your surviving spouse outside of probate (e.g. life insurance, retirement accounts, and other assets that transfer automatically by beneficiary designation). The elective share will also likely be in addition to certain allowances reserved to a surviving spouse (often adding tens of thousands of dollars to his/her inheritance). There are other strategies that may produce the intended result of disinheriting a spouse, including the use of a properly funded revocable living trust, or even a prenuptial or postnuptial agreement, but those strategies are beyond the scope of this article.

Children, on the other hand, can be almost totally disinherited without limitation. The main exception falls under those certain “allowances” referenced above, as you cannot disinherit a child that you owe a support obligation to, and the specific allowance for “exempt property” (defined specifically under Michigan law to include personal effects, furniture, vehicles, etc. up to a certain value) can still be elected by your adult children if you did not have a surviving spouse. However, proposed legislation introduced in the Michigan legislature would, if adopted, allow you to prevent an adult child from claiming this exempt property allowance.

In terms of implementing a plan to disinherit a family member, my advice is simple: work with a skilled estate planning attorney to make sure (i) that you can legally achieve your goal, and (ii) that all angles of the strategy to achieve that goal are covered in your estate planning documents, as well as your beneficiary designations and the titling of your assets. There are many nuances and exceptions in the law that may affect a plan to disinherit a family member, so if you truly feel that this is something that you need to do, do not leave anything to chance by trying to do it yourself or relying on a “virtual” attorney.

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