Disinheritance

Disinheritance

Disinheritance

Disinheritance

For reasons best known to you, you may want to disinherit your wife or one or more of your children or some other distributee who would be entitled to receive a share of your estate if you died without a WILL. Let us suppose that your situation is the average situation: happily married for 30 years and wanting your entire estate to pass to your wife. You do not want her to be hampered or bothered in her control of the property and you therefore insert a clause to the effect that you make no provision for your beloved children, John and Helen, except as set forth in the WILL.

Therefore, the language of the clause may depend upon your wife's age and upon plans which you and your wife may have for the adoption of children. If your wife is 32 years of age and you expect to have more children, you should insert a clause to the effect that "This WILL is to remain in full force and effect notwithstanding the birth or adoption of children after the execution of this WILL." While you have full confidence in all of your children, you may not have the same confidence in their spouses. If your son John dies a month after your death, leaving a wife and minor children, his widow, on behalf of John's estate and your grandchildren, may contest your WILL or a "special guard ian" appointed by the court may feel that he is bound to contest it. It may be well, therefore, to insert a clause to the effect that "Any discrepancy in any legacies, devises and be quests to my surviving children results from circumstances known to me and not from any lack of love, affection or understanding."

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On the question of disinheritance of your husband or wife, you must be prepared to discuss all facts with your lawyer and in considerable detail. Desertion by a Spouse: If you have made a settlement with your wife in lieu of her share in your estate, or in lieu of her right to take against your WILL, there will be little difficulty involved. If you and your wife have signed a separation agree ment waiving rights to each other's estate, your lawyer will confirm this with a clause in your WILL reciting that your wife has waived her rights under a separation agreement exe cuted on a specific date.

The agreement of waiver need not necessarily be a separation agreement and it may be an ante nuptial agreement, or a simple waiver, executed for tax pur poses or for purposes of facilitating control of property. You and your wife may feel that your situation is unsettled and that you want to defer until after your death the question of whether she should file a right of election. Under such circumstances, you may, in effect, disinherit her by WILL and give her the option on your death of filing or of not filing an election to take against your WILL. If you choose this course of action, however, you should have a rather clear under standing, preferably one embodied in a memorandum. After all, you and your wife may agree on what you want, but your wife may die shortly after your passing, and your daughter'shusband, an up-and-coming young law school graduate, may decide that your trusted family lawyer did not know what he was talking about and that a right of election should be filed on behalf of your wife's estate. Adjudication of Abandonment: If your husband or wife has actually left you and there has been a court order, judg ment, or decree separating you because of that abandonment, you should provide not only a certified copy of the order, judgment, or decree to be kept with your WILL, but you should refer to the judgment specifically in your WILL, de scribing it by the court in which it was rendered, the day of the month and the year, and, if available, the court index number.

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