Can You Disinherit a Child or Family Member?

Disinheriting a child or close relative is a serious estate planning decision that must be handled with precision — especially in a state like New York, where inheritance laws can create unexpected legal outcomes. While New York generally allows testamentary freedom (the right to distribute your estate as you choose), disinheritance must be clearly stated to avoid costly legal challenges and probate court disputes.

This guide explains the legal tools, strategies, and risks associated with disinheriting a child or family member under New York law, and how to protect your estate plan from future litigation.

What Is Disinheritance?

Disinheritance refers to the intentional exclusion of a legal heir from your estate. In New York, this typically involves naming a person (often a child or relative) in your will or trust and explicitly stating that they will receive nothing.

Failing to state your intentions clearly could lead the court to assume you forgot to include that person — especially if they are your child. This can result in the court awarding them a share of your estate under New York’s intestate succession laws.

Can You Disinherit a Child?

Yes, New York allows parents to disinherit their children, including both biological and adopted children. Unlike some jurisdictions that impose “forced heirship” laws, New York State does not require you to leave any portion of your estate to your children, regardless of age or dependency status.

However, the disinheritance must be explicit and unambiguous in your estate planning documents.

Key Legal Principle: Testamentary Freedom

New York honors the principle of testamentary freedom, meaning you may distribute your estate however you wish — provided the will or trust meets all legal formalities and does not violate other legal rights (such as spousal protections, which we’ll cover below).

Can You Disinherit a Spouse in New York?

No — not entirely. While you can disinherit a child, you cannot completely disinherit a spouse in New York without their consent.

New York law grants surviving spouses a “right of election”, entitling them to claim one-third of the estate regardless of what the will says. This applies to both probate and certain non-probate assets (like property held in joint tenancy or certain trusts), unless the spouse waived their rights in a valid prenuptial or postnuptial agreement.

So while children can be disinherited outright, spouses enjoy a protected share of the estate unless they waive it in writing.

How to Disinherit a Child in New York: Legal Steps

Disinheriting a child or relative in New York requires precise legal action. Here’s how to do it properly:

1. Clearly State the Disinheritance in the Will or Trust

In New York, simply leaving a child out of the will is not enough. Courts may assume it was an unintentional omission unless the will specifically names the child and states that they are to receive nothing.

Example language:

“I make no provision for my son, [Full Name], having done so intentionally and with full understanding.”

This language removes ambiguity and helps prevent legal challenges.

2. Use a Revocable Living Trust

In addition to a will, consider using a revocable living trust. Trusts offer greater privacy and are more difficult to challenge than wills. If you do not name the person as a beneficiary of the trust and clearly document your intent, you can effectively disinherit them.

Trusts are also helpful for avoiding probate, which is public and can expose your estate to litigation.

3. Include a No-Contest Clause (In Terrorem Clause)

A no-contest clause in a New York will or trust penalizes any beneficiary who challenges the document. However, New York limits their power.

Important:

• No-contest clauses are enforceable in New York only against beneficiaries who would have received something.
• If a child has been completely disinherited, they may contest the will without risking a penalty, since they’re not losing any inheritance.

To use this clause effectively, consider leaving a small inheritance (e.g., $1,000 or a symbolic amount) to discourage legal challenges.

4. Regularly Update Your Documents

An outdated will or trust may open the door for disputes. Ensure your documents reflect your current relationships and clearly state your disinheritance decisions.

5. Consult a New York Estate Planning Attorney

New York’s estate and probate laws are detailed and vary by county. Working with an attorney ensures:

• Compliance with New York Estates, Powers and Trusts Law (EPTL)
• Proper execution of documents (witnesses, notarization, etc.)
• Strategies that minimize probate disputes and protect your estate

Why People Disinherit Children or Relatives in New York

Every disinheritance case is unique, but some of the most common reasons New York residents disinherit family members include:

• Long-term estrangement or lack of relationship
• Financial irresponsibility or fear of misuse of funds
• Addiction or abusive behavior
• Preferential treatment of one child (e.g., caregiver support)
• Leaving assets to a charity or non-family member
• Significant lifetime financial support already provided

While New York law doesn’t require you to explain your reasoning, providing context can help reduce the emotional fallout and deter legal disputes.

Preventing Challenges to a Disinheritance in New York

Even a properly executed will or trust can be contested in probate court. Common challenges in New York include:

• Claims of undue influence by another heir or caretaker
• Allegations that the testator lacked mental capacity
• Technical mistakes in the will’s execution (e.g., invalid witnesses)
• Accusations of fraud or forgery

To reduce the likelihood of a successful challenge:

• Ensure the disinheritance language is clear and specific
• Have multiple, unrelated witnesses present
• Use a video recording of the will signing (optional, but effective)
• Include a doctor’s letter confirming your mental capacity if you anticipate challenges
• Avoid handwritten or DIY wills; New York probate courts favor formal execution

Frequently Asked Questions: New York Disinheritance Law

Can you legally disinherit a child in New York?

Yes. Under New York law, parents are legally allowed to disinherit their children, including adult children. New York does not have forced heirship laws that require parents to leave assets to children. However, the disinheritance must be intentional and clearly stated in a valid will or trust.

Do you have to explain why you are disinheriting a child?

No. New York law does not require you to provide a reason for disinheriting a child. You may simply state that the omission is intentional. That said, some people choose to document their reasoning in a separate letter of intent to reduce confusion or emotional fallout among surviving family members. This letter is not legally binding but can help discourage disputes.

What happens if I don’t mention my child at all in my will?

Failing to mention a child at all can be risky. A court may determine that the child was unintentionally omitted, especially if the will appears outdated or inconsistent with your family situation. To avoid this, you should explicitly name the child and state that they are intentionally disinherited.

Can a disinherited child contest a will in New York?

Yes. Even if a child is explicitly disinherited, they may still contest the will in Surrogate’s Court. Common grounds for contesting include claims of lack of mental capacity, undue influence, fraud, or improper execution of the will. A clear, professionally drafted estate plan can significantly reduce the likelihood of a successful challenge.

Does New York allow no-contest (in terrorem) clauses?

Yes, but with limitations. New York enforces no-contest clauses only against beneficiaries who were left something in the will or trust. If a child is completely disinherited and receives nothing, they generally have nothing to lose by contesting the will. For this reason, some estate plans leave a small inheritance to discourage litigation.

Summary: Key Takeaways for Disinheriting in New York

Final Thoughts: Protecting Your Wishes in New York

In New York, you have the right to disinherit a child or any other family member — but doing so must be done with careful attention to legal detail. An improperly worded or outdated document can expose your estate to prolonged court battles, family disputes, or even reversal of your wishes.

Your best protection is a well-drafted estate plan, created with professional guidance. By using clear disinheritance clauses, considering trust structures, and following New York-specific legal requirements, you can ensure your legacy is secure.

Contact Angiuli & Gentile, LLP Today

If you’re considering disinheriting a child or other family member, don’t rely on generic forms or outdated advice.

Speak with an experienced New York estate planning attorney to draft legally sound documents that reflect your intentions and comply with the latest state laws.

Your estate plan should give you peace of mind — and stand up in court, if necessary.