Leaving Someone Out of Your Will? What You Need to Know

Updated: Apr 5

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older father and son sitting apart during disagreement located in Logan, UT

ESTATE PLANNING ESSENTIALS

By: Justin J. Wall, Esq.

Trusts & Estates Attorney

Utah and Arizona

If you’re thinking about leaving someone out of your will or trust, you’re not alone—and you’re not doing anything wrong. Disinheriting a family member is a decision many people face, and it’s often more complicated emotionally than it is legally. Whether the decision has been on your mind for years or it’s something you’re just starting to consider, it’s worth taking seriously.

What matters most is how you do it. Disinheriting someone isn’t something you can slap together and hope it sticks. To make sure your wishes are followed—and to prevent unnecessary stress or conflict for the people you care about—you need a clear plan, the right legal language, and a thoughtful approach. In this article, we’ll walk through what disinheritance really means, how it works, and how to protect your plan from challenges later on.

Default Heirs: What Happens If You Don’t Leave a Plan?

Let’s start with the basics. If you don’t have a will or a trust when you die, your estate doesn’t just vanish—it gets distributed according to your state’s intestacy laws.

These are default rules that say who gets what when there’s no estate plan.

The first in line are typically your spouse and children. If you don’t have either, your parents, siblings, or more distant relatives might inherit instead. The point is this: without a plan, the law steps in—and it won’t take your personal wishes or family dynamics into account. So, if there’s someone in your life that you’re looking to leave out of the plan, the only way to make that happen is to put it in writing.

Why Would Someone Choose to Disinherit?

Most people don’t disinherit a child or other relative out of spite. More often, it’s a thoughtful decision based on how someone has behaved, the needs of other loved ones, or what feels fair under the circumstances.

For example, you might have an adult child who’s struggled with addiction, made reckless financial decisions, or simply shown they’re not in a place to manage a large sum of money responsibly. These situations are heartbreaking, especially when there’s love involved, but estate planning isn’t just about emotion—it’s also about protecting your legacy. You may worry that an inheritance would do more harm than good, enabling destructive behavior or putting them at risk. Disinheriting—or carefully limiting what they receive—can sometimes be the kindest, most protective choice for everyone involved.

Or maybe one of your children hasn’t been part of your life for years, while another has been by your side, helping with doctor’s appointments and managing day-to-day needs. Some parents want to leave more to the child who has been there, as a “thank you” for helping them during the later stages of life.

In other cases, it’s about evening things out. If you helped one child buy a house or paid for their graduate school, you might choose to reduce or eliminate their inheritance so the rest of your children are treated fairly.

And sometimes, people just want their legacy to go elsewhere. Maybe you want to support a favorite charity, a close friend, or someone who helped care for you when others didn’t.

These are all valid reasons—and they’re all reasons that should be supported by a solid plan.

The Importance of Saying It Clearly

Here’s something that surprises a lot of people: simply leaving someone out of your will isn’t always enough to keep them from challenging it. If they’re not mentioned at all, it can raise questions. Did you really mean to leave them out? Or did your attorney—or the person helping you write the will—make a mistake and forget to include them? It might sound far-fetched, but these kinds of claims happen more often than you’d think. When there’s silence, it leaves room for doubt—and that’s exactly what can lead to legal fights later on.

To avoid this, it’s important to name the person you want to disinherit and clearly state that you are intentionally choosing not to leave them anything. You don’t need to explain your reasons—and in fact, it’s usually better if you don’t—but you do need to make it clear that the decision was deliberate.

Language like “I am intentionally omitting my son John from my estate plan” is simple and effective. What you want to avoid are vague or emotionally charged statements like “for reasons known to him” or “because of his poor choices.” Those kinds of comments can stir up resentment and lead to court challenges.

Wills vs. Trusts: Which Is Better for Disinheritance?

A will is a basic estate planning tool that allows you to name heirs, choose a personal representative (someone to manage your estate), and say who gets what. But wills are required to go through a court process called probate, which can take time and give disinherited heirs the opportunity to challenge your decisions.

A revocable living trust is usually more private and flexible. It doesn’t go through probate if set up properly, and it allows for more control over how and when your assets are distributed. A trust can also be structured in a way that limits how much information a disinherited person receives.

Still, even with a well-drafted trust, there’s always the possibility that someone who feels left out will try to challenge your plan. That’s where a little extra protection can go a long way. One tool that can help discourage legal battles—especially from someone who was expecting more—is called a contest clause. Let’s take a closer look at how it works and when it makes sense to use it.

Contest Clauses: One Way to Add Protection

If you’re worried that someone might challenge your plan, you can include a contest clause (also called an “in terrorem” clause). This basically says that if someone tries to fight the will or trust in court, they lose whatever inheritance they were going to get.

A contest clause can be a powerful tool, but only if there’s something on the line. If someone’s inheritance is zero, threatening to take it away won’t stop them from challenging your plan—they’ve already been cut out, so the clause doesn’t hold any weight.

This is where strategy matters. In some cases, it makes sense to leave a disinherited person a small gift—say, $10,000—and pair it with a clause that says they forfeit that gift if they try to contest the plan. That way, they have a real decision to make: take the gift and walk away, or risk losing everything in court.

In the end, a contest clause is just one piece of a larger strategy. It can’t guarantee a smooth process, but when combined with careful planning and thoughtful drafting, it can help prevent unnecessary conflict and keep your final wishes intact. Still, even the best plans can run into unexpected roadblocks—especially if key details are left out. I once had a case in Arizona that illustrates just how quickly things can go sideways when disinherited heirs look for leverage.

A Real-Life Example: When Disinheritance Wasn’t Enough

I once represented a client in Arizona who was named as the personal representative in her mother’s will. The will left everything to two of her four children and disinherited the other two. The disinherited siblings had both spent time in prison—serious offenses, violent histories, and a long record of financial recklessness. They had not been involved in the family for decades. The mother had good reasons for her decision.

She had also made it clear, during life, that she wanted to be cremated. The problem? She didn’t include that wish in her will. The law in the state required a majority of the next of kin to agree on things like cremation if there was no written instruction in the decedent’s plan. That meant all four kids had to sign off—even the disinherited ones.

The two excluded children refused to cooperate. They wouldn’t consent to the cremation unless they were included in the estate. It was a heartbreaking moment for my client, who was trying to honor her mother’s final wishes. We had to open emergency legal proceedings just to hold a funeral.

The lesson? Even a good estate plan can fall apart if certain details are overlooked. Disinheritance needs to be paired with thorough planning, including clear instructions for end-of-life matters.

What About Spouses?

Disinheriting a spouse is a little trickier. In some states, like Utah, spouses have what’s called an elective share—a right to claim a certain percentage of your estate, even if your will says otherwise. In Utah, that percentage is one-third of the total estate. So you can write them out, but they can still choose to take their elective share, potentially frustrating your intentions.

Other states, like Arizona, don’t use the elective share system. Instead, it relies on community property laws, which automatically give each spouse a 50% interest in everything earned or acquired during the marriage. But here’s the twist: property that’s considered “separate”—like assets you owned before the marriage or received as a gift or inheritance—can be given to anyone you choose. That means a spouse in Arizona can, in some cases, be disinherited from your separate property if you write them out of your plan.

Because the rules around spousal inheritance vary so much between states—and because the outcome can be drastically different depending on how your assets are titled, when they were acquired, and whether you have agreements like a prenup in place—it’s worth sitting down with an estate planning attorney who can help you navigate the details and avoid unintended surprises.

The Emotional Side of Disinheritance

Let’s be honest—this isn’t just a legal decision. It’s an emotional one, too.

Disinheriting a child or other relative can stir up guilt, worry, and fear of backlash. It can lead to difficult conversations or, in some cases, permanent rifts. But it can also be a form of peace—an intentional step to protect your legacy, support the people who have been there for you, or keep assets away from someone who might waste or abuse them.

If you’re in this position, take the time to think it through. Talk with a trusted advisor. And, when possible, have a conversation with your family. Sometimes just explaining your decision ahead of time—kindly and clearly—can go a long way in avoiding drama later on.

Are There Alternatives to Disinheritance?

Often, when someone tells me they want to disinherit a child, what they really mean is that they want to protect them—from addiction, financial instability, outside influence, or even their own spending habits. Other times, the concern is more technical, like not wanting to interfere with a child’s eligibility for government benefits such as SSI or Medicaid.

In situations like these, full disinheritance isn’t always the right answer—and in many cases, it can backfire. For example, it’s common for parents to leave a share to one child “with the understanding” that they’ll take care of a sibling who’s struggling. But this kind of informal plan creates problems: the child who was meant to benefit has no legal rights, no protections if their sibling changes course or passes away, and no access to the share if anything goes wrong. It can also cause resentment between siblings and trigger unexpected gift tax consequences for the one trying to “do the right thing.”

Instead of relying on informal promises, we can structure a plan that reflects your goals and gives real protection. A spendthrift trust can safeguard assets for someone who’s not financially stable. A support trust or discretionary trust can give a trustee the ability to help when it’s appropriate without handing over full control. And if the concern is government benefits, we can set up a supplemental needs trust (SNT) that allows your child or grandchild to inherit without losing access to the programs they rely on.

These trusts don’t cut someone out of your legacy—they include them in a way that works. And that’s the key. If you’re thinking about disinheriting someone, take a moment to ask yourself why. There may well be a solution that matches your intent without leaving anyone behind.

Final Thoughts

Disinheriting someone is a serious decision—but it’s not uncommon, and it’s not something to feel ashamed of. If done with care, honesty, and the right legal support, it can protect your estate, support your values, and spare your family from conflict down the road.

The key is having a solid plan. A vague or silent will can be worse than no plan at all. But a clear, thoughtful trust or will—written by a qualified attorney, and built around your real-life experiences—can give your wishes the strength they need to stand up, even after you’re gone.

If you’re thinking about disinheriting an heir, let’s talk. Together, we can build a plan that protects your legacy—and the people you care about most.