Specific Disinheritance of a Beneficiary

Disinheriting a Spouse

Do you want to exclude your spouse from your will? Generally, you can’t do that in Indiana. If an individual attempts to disinherit his or her spouse, the spouse can elect to take against the will. Under Indiana statute, a spouse is entitled to ½ of the net personal and real estate of the testator (decedent). There is an exception if the surviving spouse is:

1. a second or other subsequent spouse
2. never had children with the decedent, and
3. the decedent left surviving children or grandchildren by a previous spouse.

If those conditions apply, then the subsequent surviving spouse is entitled to 1/3 of the estate plus 25% of remainder of the fair market value of the estate minus liens and encumbrances on the real property of the decedent.

If a spouse is left an amount less than what they are entitled to take, the spouse gets to choose whether they take what they were left in the will or what they are entitled to take under the law.

You can exclude your spouse from your will if they agree to it. A spouse’s right to a share in the estate can be waived before or after marriage by a written contract after full disclosure of the nature and extent of such right.

Disinheriting an Heir

Although you generally cannot disinherit your spouse, you can disinherit your child or other heir. If you choose to disinherit an heir, you should explicitly state it in your will. Courts are reluctant to disinherit heirs unless a clear intent to disinherit the heir is shown in a will. It is not necessary to state a reason for disinheriting an individual. A reason could provide an explanation to the disinherited individual. However, if the reason for disinheritance ceases to exist, it could invite a will contest.

If you need to create or reevaluate your estate planning documents, contact McNeelyLaw today at 317-825-5110 to talk to an experienced Indiana estate planning attorney.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.