When creating your estate plan, you may find that there are people in your life whom you would like to disinherit.
With this guide, you’ll be able to understand all situations where family disinheritance is possible.
To begin, you should know that Virginia is a common law state.
This means that Virginia, like all other common law states, lawfully grants your children and spouse the legal right to claim your assets if you pass away.
However, the laws change slightly based on who you’re trying to exclude from your will.
Specifically, the law distinguishes between:
- Non-immediate family (parents, cousins, siblings)
We’ll detail each below.
Disinheriting Family Relatives
The easiest way to disinherit your
If you would like to be more explicit, then you can also state in the will that certain people will not receive any of your property.
This includes all members of your family and friends, excluding your kids and spouse.
Disinheriting Your Spouse in Virginia
As previously mentioned, the Virginia Code specifically states that your children and spouse have a right to half of your augmented your estate.
Therefore, if you’re married and you intentionally disinherit your spouse in your will, they’re still entitled to the estate when you pass away.
However, your spouse only has six months to claim their right to your estate from the date of your death.
If they don’t meet this requirement, your estate may be divided as directed in your will.
Essentially, under Virginia law, and all other common law states, there’s virtually no way to prevent your spouse from receiving property through your will.
Important Note: These laws change slightly if you have children from a previous marriage.
In this scenario, your current spouse is entitled to a lawful share of 1/3 of your property, while the remaining 2/3 of your estate will be distributed among your children from the previous marriage.
Disinheriting Your Children in Virginia
In Virginia, you have the right to disinherit your children.
However, you must be explicit in doing so.
If you don’t explicitly disinherit your children in your will, those children will likely have rights to receive a portion of your estate.
In most cases, a child who is only excluded from your will can argue that they’ve been overlooked.
If they’re able to build a strong enough case and prove their rights to your estate, the judge may grant them a portion of your estate.
In addition to this “I was overlooked” argument, you children can also contest the contents of your will for three reasons:
- They believe the will is fraudulent.
- They can argue you were incompetent while making the will.
- They can state that you created the will as a result of undue influence (i.e. against your free will or without adequate attention to the consequences).
Though each can be a challenge to prove this to the court, you should be aware that there is a chance your children can argue any of these reasons after you pass.
The only defense you have against these actions is to follow all state guidelines when creating your will, preferably with the assistance of an attorney.
Finally, if you’re also thinking about disinheriting your grandchildren, you can rest assured that, in Virginia, they have no statutory rights to your estate.
Therefore, you can just leave them out of your will to disinherit them.
However, they may still inherit a portion of your estate if their parent (your child) is an heir to your estate and also deceased at the time of your passing.
In this scenario, your child’s portion of your estate will be divided up among your grandchildren by that child.
Children Conceived Before, but Born After, You Pass Away
Children who are conceived before, but born after, you pass away are called “afterborn heirs.”
Under Virginia law, these children inherit “as if they had been born during the lifetime of the decedent.”
Children Conceived and Born After You Pass Away
With recent advancements in medical technology, it is now possible to have children well after you pass away.
Further, if this occurs in your case, that child may have a claim on your estate.
In this circumstance, these children can contest the normal Intestacy Succession Rights in court.
In Virginia, state statutory law limits the rights of posthumously conceived children.
Specifically, Virginia will allow such children to claim your property assets under two clauses.
The woman bearing the child should give notice to doctors of such special circumstances of the child’s birth.
In addition, the deceased should give their consent to be the child’s parent before they pass away.
Disinheriting your family members is actually quite easy in Virginia, as long as they are not married to you at the time of your death.
- You can disinherit family members (parents, cousins, uncles, grandchildren) by simply leaving them out of your will.
- You cannot prohibit your spouse from inheriting at least a portion of your estate.
- You can disinherit any of your children by specifically excluding them by name in your will.
In all of these situations, it’s a good idea to speak with an attorney before attempting to disinherit someone.
An experienced attorney can help guide you throughout the estate planning process, and make sure that your wishes are carried out properly after your passing.