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Can I Disinherit Someone In My Will?

Posted by Joel Beck | Jan 17, 2024 | 0 Comments

Facing the complexities of estate planning can be challenging, and one question we often encounter at Peach State Wills & Trusts is whether you can disinherit someone in your will. This blog post aims to provide clear, professional guidance on this sensitive topic, ensuring you make informed decisions for your estate planning in Georgia.


What Does Disinheritance Mean?

Disinheritance refers to intentionally excluding from your will someone who would otherwise be expected to inherit part of your estate, such as a family member. While this is a personal and sometimes difficult decision, it is within your rights to do so under Georgia law.


Why Consider Disinheritance?

Various reasons may lead to considering disinheritance, from estrangement to the desire to prevent misuse of assets. It's essential to approach this decision thoughtfully, understanding its emotional and legal implications.


Is Disinheritance Allowed in Georgia?

Disinheritance, the act of intentionally excluding someone from inheriting from your will, is a complex area of estate planning law, and the rules can vary significantly from state to state. In Georgia, the law does permit disinheritance, but there are important nuances and legal protections, especially for certain close family members like spouses, that you should be aware of.


Disinheritance in General

  1. Fundamental Right: In Georgia, you generally have the right to choose how to distribute your assets after death. This includes the option to disinherit individuals who might otherwise expect to inherit under the law, such as biological or adopted children or more distant relatives.

  2. Explicit Statement: To effectively disinherit someone, explicitly state this intention in your will. Simply omitting someone from your will may not be sufficient, as it could be construed as an oversight, leading to potential legal challenges.

Disinheriting a Spouse

  1. Spousal Rights for a Year's Support: Disinheriting a spouse is more complicated due to legal protections called a year's support under Georgia law. In some states, a spouse is entitled to a particular portion of your estate, regardless of what your will says. That is often called an elective share, and is designed to prevent a spouse from being left destitute. Here in Georgia, there is no elective share option for a surviving spouse, but a spouse can file a petition for a year's support, regardless of what the will says (even if the spouse was disinherited in the will), and seek a portion or all of the probate estate, often before creditors are paid. 

  2. Exceptions: Some exceptions exist, such as in cases with a valid prenuptial or postnuptial agreement in which the spouse has waived the right to inherit. And, as noted above, the year's support comes only from the probate estate, so reducing assets that may go through probate and instead having them transferred via other legal needs, may help ensure a person's wishes are followed, or more closely followed at least, despite a possible claim for a year's support.  

Disinheriting Children

  1. You can disinherit children. Generally, in Georgia, you can disinherit children. However, it's essential to explicitly state this in your will to avoid any presumption of accidental omission.

  2. Minor Children: Minor children also have the ability to pursue a year's support claim, and therefore seeking to disinherit a minor child can be problematic.  See comments above concerning year's support with respect to surviving spouses.

Legal Challenges

  1. Potential for Contest: Disinherited individuals, especially those who typically expect to inherit, such as children or spouses, may contest the will. They might argue that the disinheritance resulted from undue influence and coercion or that the testator lacked the mental capacity to create a will that disinherited them.

  2. Clear and Concise Wording: To reduce the risk of successful challenges to the will, it's crucial to use clear and concise language, explicitly stating the intention to disinherit and the reason, if appropriate.

Clear and Explicit Wording

To disinherit someone effectively, your will must contain clear and explicit language without room for interpretation. Vague or ambiguous wording can lead to legal disputes, complicating the probate process.


Alternatives to Disinheritance

Considering alternatives to outright disinheritance is often a prudent approach in estate planning. Disinheritance can lead to family conflicts and legal challenges, potentially marrying the final memory a person leaves behind. Using tools like trusts or specific bequests, you can exert control over your assets, ensure they are used according to your wishes, and potentially mitigate the emotional and legal fallout that disinheritance might cause.


Contact Peach State Wills & Trusts

Planning your estate is a significant step in securing your legacy and peace of mind. To learn more about estate planning and disinheritance in Georgia, contact Peach State Wills & Trusts at 678-344-5342 or online. We're here to offer friendly, approachable, and professional guidance. For more information and resources, download our free guide here, with no strings attached. Let us help you plan confidently and effectively.

About the Author

Joel Beck

Joel Beck founded The Beck Law Firm, LLC in 2007. His firm focused on business law and estate planning needs of clients, two areas that he was drawn to based upon personal and business experiences in his life, including a ten-year career at NASD (now known as FINRA).


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