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Can I Leave a Child Out of My Will? My Spouse?

The short answer to this question is: Yes. Each person has the absolute discretion to decide who will inherit his or her property. That property may be left to a surviving spouse, to children (either all of the children or just certain ones), to other family members, to friends, to business partners, or to a church or other preferred charity.

If you choose to not leave your property to your spouse or children in your Will or Trust, can they object and overrule your wishes? The only successful way to object is by showing that you were either mentally incompetent or were coerced or tricked into leaving the property as you did. Courts tend to be skeptical of accusations of incompetence, coercion, or deception.

Having said all of that, if you decide to leave your spouse or children out of a will, there are certain steps that your attorney should take to protect that decision.

First, it is important for you to include the name of your child or spouse in the Will or Trust. Your Will or Trust should include a short section that names your spouse and all of your children, even those who may not receive any of your property. Failing to mention them at all opens the situation up to an argument that you simply “forgot” your spouse or child. If you actually had forgotten them, they might convince a court to direct some (or even all) of your property to them despite your clear wishes expressed in your Will or Trust to the contrary.

Then, once you’ve shown that you are fully aware of who your spouse and children are, you can leave your property to whomever you wish without fear of your family arguing that you forgot them.

Second, your attorney or lawyer should include a statement in the Will or Trust to the effect that, “If I left you out of my Will or Trust, I did so on purpose.”

Third, you should also include a statement that you desire that any person who may contest your Will or your Trust is not to receive any portion of your estate.

Finally, if you are elderly or are exhibiting signs of forgetfulness, you should visit with your physician shortly before or after you have made your Will or Trust. Ask your physician to either send you a letter confirming his or her opinion that you are mentally competent or ask that your physician confirm such an opinion in your written medical records. Doing so will provide the proof that your Executor may need in the event of a Will contest based on the claim that you were mentally incompetent.

One last comment: The common misconception that you are legally required to leave at least a dollar to every family member is exactly that—a misconception. Following the suggestions, above, without leaving a dollar to the person whom you wish to leave out of your Will or Trust is the better way to proceed.

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