Leaving a Child or Spouse Out of Your Will

It is not unusual for a person making a Will to desire to leave nothing to a surviving child. Or even to that person’s surviving spouse. We routinely are asked whether doing so is permissible here in Idaho.

The short answer is: Yes. Legally, each person has the absolute discretion to decide who will inherit his or her property. One’s property may be left to a surviving spouse, to children (either all of the children or just certain ones), to other family members, to friends, to business partners, or to a church or other preferred charity.

At Peters Patchin & Monaghan, we put our nearly half century of experience to work creating your custom Idaho Estate Plan package. Partners Daniel Patchin and Ben Monaghan work closely with with senior partner, Barry Peters (retired), to craft the best possible Will or Trust, and related documents, to meet all of your needs in the most efficient and affordable manner possible. We know that you’ve worked hard to provide for your loved ones. So we help you map out the best plan to do so.

If you choose not to leave your property to your spouse or children in your Will or Trust, can they object and overrule your wishes? The only way to successfully object here in Idaho is by showing that you were either mentally incompetent or were coerced or tricked into leaving the property as you did. But courts tend to be skeptical of accusations of incompetence, coercion, or deception.

Having said all that, if you decide to leave your spouse or children out of a will, there are certain steps that your attorney should take to protect that decision.

First, it is important for you to include the names of all of your children and any spouse in the Will or Trust. Your Trust or Will should include a short section that names your spouse and all of your children, even those who may not receive any of your property. If you make no mention of a spouse or a child at all, that may open the situation up to an argument that you simply “forgot” your spouse or child. If you actually had forgotten them, they might be able to convince a court to direct some (or even all) of your property to them despite your clear wishes expressed in your Will or Trust to the contrary.

Then, once you’ve shown that you are fully aware of who your spouse and children are by naming them in your documents, you can leave your property to whomever you wish without fear of your family arguing that you forgot them.

Second, your Idaho attorney should include a statement in the Will or Trust to the effect that, “If I left you out of my Will or Trust, I did so on purpose.”

Third, you should also include a statement in your documents that you desire that any person who may contest your Will or your Trust is not to receive any portion of your estate.

Finally, if you are elderly or are exhibiting signs of forgetfulness, you should probably visit with your physician shortly before or after you have made your Idaho Will or Trust. Ask your physician to send you a letter confirming his or her opinion that you are mentally competent and ask that your physician confirm such an opinion in your written medical records. Doing so will provide the proof that your Executor may need in the event of a Will contest or Trust contest based on the claim that you were mentally incompetent.

One last comment: The common misconception that you are required to leave at least a dollar to every family member is exactly that—a misconception. Following the suggestions, above, without actually leaving a dollar to the person whom you wish to leave out of your Will or Trust is the better way to proceed.

If you would like to learn more about these questions, give our office a call at 208-939-2600 to schedule your free initial consultation. Or you can schedule an expedited appointment at your convenience by clicking on either of the yellow “Schedule Now” boxes on our Home Page.