Family feuds are almost as old as the family unit itself. When the diverse personalities that exist within a family yield conflict that is not resolved over time, it may become a matter that is considered during estate planning. The purpose of a well drafted Will is to direct the disposition of your property upon your death. For the most part, you can include and exclude whomever you wish. However the law provides some protection for certain dependents and makes some basic assumptions that could leave the door open to the disinherited person to bring an action to contest your Will. Therefore, disinheritance must be handled with great care and it is important to understand some of the laws and limitations of disinheritance.

There are very limited exceptions where a court will acknowledge your clear intent to disinherit a person yet rewrite the terms of your Will to include the disinherited person. Because you have a legal support obligations to your spouse and minor children, these individuals have the benefit of legal protection in some circumstances.

You may not disinherit your spouse in your Will. This same rule applies if you attempt to will away most of your property leaving very little for your spouse. Your spouse will have the option to elect to take either what he or she is devised under the Will or a "spousal share". In Oklahoma, the share that the spouse is entitled to is an undivided one half of all joint industry property in addition to "homestead" property.

Joint industry property, as you may remember being discussed in prior articles, is any property acquired during the marriage by the efforts of either spouse, except for property acquired by gift or inheritance. Additionally, your spouse is entitled to make an informed decision between the property he or she has been devised and the property he or she would receive by electing to take a spousal share, so even if your spouse may not be aware of the full extent of all property you have acquired during your marriage during your lifetime, he or she will be entitled to be fully informed before making the decision to take under or against your Will.

The protection provided for children is much narrower. Minor children are entitled to homestead rights upon the death of both parents, but otherwise have no statutory rights similar to that of a disinherited spouse. You may disinherit children that are of legal age, but take care to do so clearly, as discussed below, or the court may misinterpret your intentions.

Homestead property includes the all family pictures, burial lots, the family Bible and other books not to exceed $100, the decedent’s and the family’s clothing, all household and kitchen furniture. Homestead property also includes a limited interest in the family home. A surviving spouse is entitled to a life estate in the family home, and the decedent’s children are entitled to occupy the family home until the youngest child reaches age eighteen (18).

The right of a spouse to take a spousal share against the Will may be defeated by divorce following the date of execution of the Will or by a valid antenuptial contract specifically addressing such matters.

Proceed With Caution

If you decide to disinherit someone be clear and precise in doing so. If not done correctly, your intent to disinherit a family member could be construed as accidental and in some cases can even give the family member grounds to challenge your Will. In particular, if you decide that you want to leave one of your children out of your will, you must still name him or her and state that you leave him or her nothing or a leave him or her a nominal amount.

If you simply fail to make any mention of one or more of your children, the courts might deem this to be an oversight and grant the child the share they would have received if you had died without leaving a Will. Testimony by family members or outside documents evidencing the state of your relationship with the omitted child is not allowed, and the court will be restricted to reading the Will to determine if the omission is intentional or accidental.

Furthermore, although it is important to name a child whom you disinherit, you need not provide a lengthy explanation as to why you have chosen to do so. Including these details may leave your Will open to challenges based on mistake of fact. There are no particular prerequisites to disinheritance, so you need not provide this information in your Will.

This outlines the major principles of law regarding disinheritance. Please remember that these rules stem from Oklahoma common law and statutes. The same circumstances could yield different results in different states, so if your Will was drafted in one state and you relocate to another, you should have it reviewed by an estate planning attorney in your new state of residence to ensure that any special provisions drafted in your previous home state will still have the intended effect. Likewise, if your Will was drafted out of state and you now live in Oklahoma, consider having it reviewed by an Oklahoma estate planning attorney to be sure it conforms to the laws of this state.