ESTATE PLANNING
and made gifts to them, the omitted child receives a proportional share based on what the living children receive, drawn first from the residue and then equally from bequests to other beneficiaries.
For example, what if a testator had three children when the will was executed, and has another child after execution? Let’ s say the terms of the will give $ 100,000 each to the three older children and leaves an estate totaling $ 360,000. If that’ s the case, then the omitted child receives the $ 60,000 remainder and $ 10,000 from each of the bequests to the three older children, so they each get $ 90,000, or one-fourth, of the total estate. 2. The Surviving Spouse Exception Here is where most state laws draw a hard line: Most states do not allow a testator to completely disinherit a surviving spouse. Regardless of what the will states, the spouse may elect to take against the will and receive a“ statutory forced share.”
The financial implications are significant. Typically, if the decedent leaves issue( children or grandchildren), the spouse is guaranteed a minimum amount outright plus a life interest in a portion of the remaining estate. The exact percentages and amounts vary by state, but the principle remains consistent: Surviving spouses have protected rights that cannot be circumvented through disinheritance.
What makes this particularly challenging for business owners is that this share may include some non-probate assets, such as those held in revocable trusts; that means it’ s essential to carefully plan so that someone isn’ t included accidentally in the ownership of voting stock of the business. For example, if a child is the beneficiary of a trust, then the child’ s spouse may have marital rights over the trust assets. Your carefully structured business succession plan could be disrupted if you haven’ t properly accounted for such spousal rights.
3. Community Property States: A Different Playing Field
If you live in a community property state( Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin), the rules change dramatically. In these jurisdictions, each spouse automatically owns a 50 % interest in all property acquired during the marriage, regardless of whose name is on the title.
This fundamental difference means that disinheritance strategies must account for the fact that a surviving spouse already owns half of the marital estate by law. You can only disinherit someone from property acquired outside of the marriage and your half of the community property. Attempting to dispose of your spouse’ s community property interest through your will is not only ineffective, but it can also trigger costly litigation and family disputes.
Community property states also have different rules for what’ s separate property and what’ s marital; some allow couples to convert community property to separate property( or vice versa) through written agreements. If you’ re a business owner in a community property state, that creates both challenges and opportunities for estate planning that don’ t exist in common law property states.
The stakes are too high for generic online templates when clients are dealing with substantial assets or complex family dynamics.
Best Practices for Bulletproof Disinheritance
1. Clients Should Express Their Intent Clearly
They should always expressly state their desire to disinherit an individual— because any ambiguity risks a statutory intervention. Their will should include language such as:“ I intentionally make no provision for my son John Doe, and this omission is deliberate and not accidental.” 2. Use Multiple Tools in Combination Your clients should consider using a combination of wills, trusts and updated beneficiary designations for thorough implementation. Trusts are highly effective tools for controlling distributions and safeguarding them against future litigation, especially in complex family structures or where their privacy and asset protection are paramount.
Don’ t forget the often-overlooked details: All the beneficiary designations on your clients’ accounts( including their insurance, retirement and bank accounts) should also be reviewed and updated so the clients avoid leaving money to someone they don’ t want to accidentally.
3. Make Sure They Understand the Limitations
Be aware of protections for omitted children and forced-share rights for surviving spouses— they cannot be circumvented by omission alone. This is where many DIY estate plans fail, costing families thousands in litigation and potentially undermining your client’ s intent entirely. 4. Work with Experienced Counsel Your clients should discuss their intentions with you and their estate attorney to tailor strategies, especially in unique family arrangements or high-value collections. The stakes are too high for generic online templates when they are dealing with substantial assets or complex family dynamics.
The Bottom Line
King Charles’ s formal and public action serves as a reminder: Whether royal or ordinary, for a disinheritance to stand, the process must be as intentional and as welldocumented as the reasoning behind it.
For business owners and high-net-worth individuals, the lesson is clear: Protecting their legacy requires more from them than just financial acumen— it demands legal precision. The difference between a successful disinheritance and a costly family lawsuit often comes down to the quality of your planning for them and the clarity of their documentation.
Whether they’ re protecting a family business from a spendthrift heir or ensuring that their philanthropic vision survives family disputes, the key is acting deliberately and working with qualified professionals who understand both the legal requirements and the family dynamics at play. In estate planning, as in business, the details matter— and getting them wrong can be expensive.
MATTHEW ERSKINE is managing partner at Erskine & Erskine.
54 | FINANCIAL ADVISOR MAGAZINE | DECEMBER 2025 WWW. FA-MAG. COM