Excluding a Loved One from Your Estate Plan


Can I legally exclude a child from my will?

When drafting an estate plan, most people will elect to leave their hard earned assets to their spouse and children. At times, however, a person may choose to leave a certain family member out of their estate plan. A parent may make the hard decision to exclude a child or a married partner may desire to leave their spouse out of their will for personal or economic reasons. While generally it is solely at your discretion to leave your assets to whom you desire, exceptions do exist that could limit your ability to cut off some family members. Our Orange County, California estate planning lawyers explore how and when you can exclude a family member from an estate plan below.

Omitting a Spouse from Your Estate Plan

A married person in California has the power to leave his or her property to whomever they desire, but community property laws can complicate the situation. Per California law, if you are married, you can leave your share of marital property as well as your separate property to anyone you want. If you plan to leave your spouse out of your will for whatever reason, you must first determine what is community and what is separate property.

Per California law, any property you and your spouse acquire during the marriage, along with any debts, will belong to the community. If you divorce, each spouse will receive one half of the community property and will assume one half of the community debt. The same situation arises if a spouse wants to leave their partner out of their will. He or she can only give away one half of the community assets. Separate property, or property owned before the marriage, can be willed as desired.

Some community property comes with a right of survivorship. Depending on the title to your real property, the law may require that your spouse inherit full title to the property should you die. Review the title to your home or other property for more information.

Cutting Out a Child from Your Will

Leaving a child out of a will is always a difficult decision. Some parents may elect not to include a child within their will because the child has a substance abuse issue or perhaps the child has done well and does not need the assets, whereas other relatives do. Whatever your reason, you have the power to exclude a child from your will under California law.

If you desire to exclude a child from your will, it is important to specifically state that you have elected to leave nothing to the child. You will want to speak to your attorney about how you can prevent your exclusion from leading to litigation.

Brian Chew, the managing partner of OC Wills & Trust Attorneys, has extensive experience in the areas of estate planning, asset protection planning, business succession planning, long-term care planning, and veterans’ benefits. By devoting his practice to estate planning matters, he has founded a firm that strives to provide exceptional service to their clients by working closely with individuals and their families to create comprehensive and customized estate plans. For the past twenty five years, Brian has served thousands of clients in the matters of estate planning, wills and trusts. If you have any questions about this article, you can reach Brian Chew here.