Ask the Expert: A spouse can't be disinherited

Under New York law, you can't disinherit your Under New York law, you can't disinherit your spouse. But if you want to disinherit your child, a sibling or a former lover, the best way to do that is to state your intention forthrightly in the first paragraph of your will and initial that paragraph, says Eric Kramer, a Uniondale estate lawyer. Photo Credit: iStock

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Can my will exclude a member of my family or other close relation?
 

Yes, as long as you aren't married to that person. Under New York law, you can't disinherit your spouse. Your surviving husband or wife is legally entitled to inherit not less than one-third of your estate or $50,000, whichever is greater.

Let's say you want to disinherit your child, a sibling or a former lover. The best way to do that is not simply by leaving that person's name out of your will, says Eric Kramer, a Uniondale estate lawyer. If the will is challenged after your death, such an omission could be viewed as forgetfulness. (Your will can be legally contested by anyone who would inherit under the state's intestacy law if there were no will, or by anyone who was a named beneficiary in your previous will but is excluded from this one.)

To make a potential challenge more difficult, you want it to be clear that you acted on purpose and that you understood what you were doing, says Kramer.

His advice: State your intention forthrightly in the first paragraph of your will and initial that paragraph. (For example: "I leave nothing to my daughter Grimalda Smith, for reasons best known to her. Under no circumstances shall she inherit, act as a fiduciary or benefit in any way whatsoever under this will.") Ask your doctor to write a letter declaring that you are mentally competent and give it to your lawyer for safekeeping, along with your own letter explaining what you want to do and why. When you sign the will, ask your lawyer to go over its terms in front of the witnesses.

And don't invite the disinherited person to the signing.

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The bottom line You can disinherit anyone except your spouse.

Websites with more information bit.ly/1aSLI7z and bit.ly/1aQ2Gqk


TO ASK THE EXPERT Send questions to Ask the Expert/Act 2, Newsday Newsroom, 235 Pinelawn Rd., Melville, NY 11747-4226, or email act2@newsday.com. Include your name, address and phone number. Questions can be answered only in this column. Advice is offered as general guidance. Check with your own advisers for your specific needs.

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