Disinheritance

• Author: Browne C. Lewis
• Pages: 374-408

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Chapter Eight: Disinheritance

8.1 Introduction

The purpose of this chapter is to explore ways in which a person, including a child, can be

disinherited. Should persons be allowed to disinherit their children? Should the government be

forced to provide financial support for the dependent minor or disabled child of a millionaire? The

legislators in the majority of states in America have answered these questions in the affirmative by

permitting a testator to completely disinherit his or her child. Louisiana is the only states that

protects a minor or disabled child from being disinherited.

8.2 Exceptions

8.2.1 Forced Heirs

The state of Louisiana makes special exceptions for children under the age of twenty-three

and permanently disabled children. Those classes of children are designated as forced heirs because

the decedent is forced to name them as heirs in his or her will and the probate court is forced to

consider them as heirs under the intestacy system.

LSA. C.C. Art. 1493. Forced heirs

Forced heirs are descendants of the first degree who, at the time of the death of the

decedent, are twenty-three years of age or younger or descendants of the first degree of any

age who, because of mental incapacity or physical infirmity, are permanently incapable of

taking care of their persons or administering their estates at the time of the death of the

decedent.

8.3 Negative Disinheritance

Parents have the right to disinherit their children. Parents may accomplish this by expressly

stating in writing that they intend to disinherit their children and leave their property to charity or

other persons.

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Probate courts will usually comply with the parents’ request that their children not

receive any part of their estate. Under the common law negative disinheritance rule, in order to

disinherit a child the parent has to do more than just state that the child is intentionally disinherited.

In some cases, a disinherited child may inherit from the estate if all or a part of the estate is

distributed under the intestacy system. For example, all of the estate would be disposed of in

accordance with the intestate succession laws if the will was invalidated for any reason, including

undue influence, insane delusion and/or duress. In addition, a partial intestacy may result if the

testator failed to devise any part of his or her estate by will. In any of those cases, being disinherited

would not prevent a child from taking an intestate share. See the following example and case.

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Bill Gates, Warren Buffet, and other billionaires, have indicated their plans to leave most of t heir money to charity.

They plan to leave their children nominal amounts or, in some cases, nothing in their wills.

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8.3.1 Example

Ross had three children, Olivia, Dennis and Susie. Ross disapproved of the man Susie

married, so he decided to disinherit her. In his will, Ross stated, “My house, my money and all of my

personal property is to be divided between Olivia and Dennis. Susie is not to inherit any of my

property.” Ross did not include anything in his will with regards to the distribution of his 500 acre

farm. Under the negative disinheritance rule, although Susie was specifically disinherited by Ross’

will, Susie may be entitled to a share of the farm because it was not devised to other persons. She

was entitled to receive an interest in the farm and any other property not disposed of by the will.

Susie’s share of the estate depended upon the intestacy system.

Most jurisdictions no longer apply the negative disinheritance rule. The rule has been

changed by application of UPC § 2-101(b)(1990). That section permits the testator to execute a will

that disinherits a child. The disinherited child is treated as if he or she disclaimed his or her intestate

share. As a result, the child is treated as if he or she had died before the testating parent. Some states

have abolished the negative inheritance rule by statute.

8.3.2 UPC § 2-101 Intestate Estate

(b) A decedent by will may expressly exclude or limit the right of an individual or class to

succeed to property of the decedent passing by intestate succession. If that individual or a

member of that class survives the decedent, the share of the decedent’s intestate estate to

which that individual or class would have succeeded passes as if that individual or each

member of that class had disclaimed his [or her] intestate share.

In re Estate of Melton, 272 P.3d 668 (2012)

PER CURIAM:

This is a dispute between the State and a testator’s daughter and half-sisters over his $3 million

estate. At issue is the proper distribution of the estate of the testator, who, by way of a handwritten

will, attempted to disinherit all of his heirs but was unsuccessful in otherwise affirmatively devising

his estate. Under the common law, a disinheritance clause was unenforceable in these circumstances.

In the proceedings below, after determining that the testator’s handwritten will was a valid

testamentary instrument that revoked his earlier will, the district court applied the prevailing

common law rule, and thereby deemed the testator’s disinheritance c lause unenforceable. The court

therefore distributed the testator’s entire estate to his disinherited daughter, pursuant to the law of

intestate succession, and rejected the claim that because he disinherited all of his heirs, his estate

must escheat to the State to be used for educational purposes.

Crucially, however, the Nevada Legislature has enacted a statute providing, in pertinent part, that a

will includes “a testamentary instrument that merely ... excludes or limits the right of an individual or

class to succeed to property of the decedent passing by intestate succession.” NRS 132.370. We

conclude that by its plain and unambiguous language, NRS 132.370 abolishes the common law rules

that would otherwise render a testator’s disinheritance clause unenforceable when the testator is

unsuccessful at affirmatively devising his or her estate. Here, although the district court correctly

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determined that the testator executed a valid handwritten will that revoked his earlier will, the court

erred in deeming the disinheritance clause contained therein unenforceable.

Finally, we consider whether an escheat is triggered when, as here, a testator disinherits all of his or

her heirs. We conclude that an escheat is triggered in such a circumstance because, when all heirs

have been disinherited, the testator “leaves no surviving spouse or kindred” under NRS 134.120

pursuant to the plain and commonly understood meaning of that phrase. Accordingly, the district

court erred in determining that the testator’s estate does not escheat.

Because the disinheritance clause contained in the testator’s will is enforceable, we reverse the

judgment of the district court. As the testator disinherited all of his heirs, his estate must escheat.

FACTS AND PROCEDURAL HISTORY

The 1975 will

In 1975, William Melton executed a formal will. The will was comprised of two forms, which

Melton and three witnesses signed. Melton devised most of his estate to his parents and devised

small portions to his brother and two of his cousins, Terry Melton and Jerry Melton. He also

indicated that his daughter was to receive nothing. In 1979, Melton executed a handwritten codicil

on the back of one of the 1975 will forms that provided his friend, Alberta (Susie) Kelleher, should

receive a small portion of his estate (both will forms and the codicil are hereinafter referred to as

“the 1975 will”).

The 1995 letter

In 1995, Melton sent a handwritten letter to Kelleher. It reads:

5–15–95

5:00 AM

Dear Susie

I am on the way home from Mom’s funeral. Mom died from an auto accident so I thought I had

better leave something in writing so that you Alberta Kelleher will receive my entire estate. I do not

want my brother Larry J. Melton or Vicki Palm or any of my other relatives to have one penny of

my estate. I plan on making a revocable trust at a later date. I think it is the 15 of [M]ay, no

calendar, I think it[’]s 5:00 AM could be 7:AM in the City of Clinton Oklahoma

Lots of Love

Bill

/s/ William E. Melton

AKA Bill Melton

[Social security number]