Disinheritance: How to deal with this estate planning concern

In most cases, with the appropriate estate planning, testators can leave their assets to whomever they choose. They can also disinherit whomever they choose, but this is not always easy to do without risking a challenge during probate. An heir who is disinherited may have reason to contest that the testator executed the will under duress or when he or she was not thinking clearly. What may help such a contest is an estate plan that lacks the appropriate support for disinheritance. 

Without the consent of both partners, a Texas testator may not disinherit a spouse. Even a prenuptial agreement requires mutual consent, so a probate judge is likely to overturn a will that disinherits a spouse. However, the following elements for disinheriting other heirs may be more difficult to fight: 

• Separate documents that clearly and reasonably explain the decision to disinherit 
• Documentation that supports the testator’s mental capacity 
• A no-contest clause that accompanies a diminished but attractive inheritance that makes it more difficult for the heir to risk losing through a challenge 
• Joint ownership of property with another heir so the property bypasses probate and so is not governed by the will 
• A “transfer on death” designation to name who receives bank accounts or investments  
• Trusts that transfer property outside of the probate process 

Because Texas and other states assume the closest family members are the rightful heirs of an estate, a loved one who leaves no will is unable to disinherit a spouse or child. Nevertheless, even with a will, the wish to disinherit a close family member is not always easy to realize without risking a challenge in court.