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How Can I Omit Someone From My Will?

Here is one example of a celebrity who apparently did just that. When Rocky Aoki, the founder of the Benihana chain of restaurants, died in 2008, he left behind a huge empire of restaurants and a fractious relationship with his family. At the time of his death, he had effectively disinherited his children and left his estate to his third wife — a move the court upheld.

Disinheriting An Heir

If you are unfortunately in the situation that you deem it necessary to disinherit an heir, how do you go about doing so? In New York, you can direct that your property goes to whomever you wish, subject to certain limitations.

  • Your spouse. New York law recognizes that in a marriage relationship, the spouses are connected to each other. The fortunes of one are intertwined with the other. For example, one spouse may forgo financial or career success for the other spouse to succeed. Because of this, the law acts to protect a surviving spouse. Spouses who receive less than what they would have received if the deceased died without a will have the right to claim an elective share. This is an amount equal to one-third of the estate or $50,000, whichever is greater.
  • Your children or other heirs. While you may leave them out of your will, children may challenge the will based on claims of undue influence, fraud, improper execution, or lack of capacity.

If you have granted designated property to your heirs and want to prevent them from challenging your will to get more, you may be able to use an in terrorem clause, a statement in your will that completely disinherits any heir who unsuccessfully challenges it.

Generally speaking, it is possible to leave an heir out of your will. Each case is different and proper planning make it more likely that the court follows your wishes after your death. If you are looking to write a will or prepare an estate plan, contact us for assistance in helping you prepare an estate plan designed to protect your wishes.

Anthony Lamberti on G+

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