Can You Disinherit a Spouse or Child?

Whether you can disinherit a spouse or child depends on who you are asking about and which state's law applies. Spouses receive powerful legal protections in almost every state — protections that make it very difficult, and often impossible, to cut a spouse out entirely. Children stand on very different legal ground: they can generally be disinherited in most states, but only if your will is deliberate and unambiguous. An accidental omission, or a will that has grown stale, can have unintended consequences.

Disinheriting a Spouse: Usually Not Possible

The law across the United States reflects a consistent policy: a surviving spouse is entitled to at least some minimum share of a deceased spouse's estate, regardless of what the will says. The mechanism for enforcing that protection depends on whether you live in a common-law property state or a community property state.

Common-Law Property States: The Elective Share

The majority of U.S. states follow the common-law property system, in which each spouse individually owns property in their own name. But this system includes a critical safety valve for surviving spouses: the elective share, sometimes called a forced share or statutory share.

An elective share gives a surviving spouse the legal right to claim a set portion of the deceased spouse's estate regardless of what the will provides. If the will leaves the spouse nothing, or far less than they would be entitled to by law, the surviving spouse can file an election with the probate court to claim their statutory portion instead of — or in addition to — whatever the will offered.

The exact percentage varies by state. Some states set a fixed fraction — often somewhere between a third and half of the estate. Others use a sliding scale tied to the length of the marriage, giving longer marriages stronger protection. Some states extend the calculation to include certain non-probate assets, such as assets held in a revocable living trust, so that the share is calculated on a broader base and cannot easily be avoided by moving assets out of the will's reach.

There is also a deadline: in common-law states, a surviving spouse typically must formally file an election within a limited window after the estate is opened. Missing that deadline can forfeit the right entirely. The exact timeframe varies by state. If you are a surviving spouse who has been left out of or underserved by a will, contact a licensed estate or probate attorney in your state as quickly as possible.

Community Property States: The Spouse May Already Own Half

Nine states follow community property rules. In these states, most property that either spouse acquires during the marriage — earnings, assets purchased with those earnings, and similar property — is automatically co-owned equally by both spouses, by operation of law. The surviving spouse already owns their half of the community property outright. A will can only direct what happens to the deceased spouse's half.

This means a will in a community-property state cannot give away what the surviving spouse already owns. Assets acquired before the marriage, and assets received during the marriage as gifts or inheritances, may be treated as separate property and are not automatically subject to community ownership — but even that distinction can be complicated if the spouses commingled assets over time.

If you own property in both a community-property state and a common-law state, the interaction of those rules can be complex. A licensed estate attorney familiar with both states' laws can help you understand which rules apply to which assets.

Disinheriting a Child: Generally Permitted, With Two Key Exceptions

Unlike spouses, adult children have no general statutory right to inherit from a parent's estate in the United States. If your will is clear and deliberate about leaving a particular child nothing, most states will honor that decision. There is no federal law granting children an inheritance, and most states do not create one either.

However, two important exceptions can undo a disinheritance if you are not careful about how you draft and maintain your will.

Pretermitted Heir Rules: Protecting Children Left Out Accidentally

Most states have pretermitted heir statutes that protect children — and sometimes other descendants — who were omitted from a will not by choice, but by oversight. The classic scenario: you wrote a will before having children, then had a child and never updated the document. Most states presume that a parent who failed to mention a later-born child simply forgot to update the will, rather than intending to disinherit. In that case, the omitted child may receive a share of the estate — often the share they would have received under intestate succession, as if no will existed at all.

The scope of these rules varies significantly by state. Some states protect only children born or adopted after the will was signed. Others protect any child who is not mentioned anywhere in the will, regardless of birth order or timing. Some rules extend to grandchildren if a child has already died. The key takeaway: silence in a will is risky if you have children.

When Disinheritance Is Clear and Effective

If your will is current, properly signed and witnessed under your state's formalities, and clearly states your intent — naming the child and explicitly noting that they are to receive nothing, or leaving them only a nominal amount to show the omission is deliberate — most states will honor that choice. You are not required to explain your reasons, but the clear naming of the child signals to the court that the omission was intentional, not accidental.

A disinherited child may still attempt to contest the will in court, typically on grounds such as lack of testamentary capacity, undue influence, or failure to meet signing and witness requirements. Will contests face strict deadlines and standing requirements that vary by state, and winning is difficult when a will appears to have been properly executed and clearly reflects the testator's intent. But the possibility of a contest is a reason to work carefully with a licensed estate attorney when you know your plan may be disputed.

Note that stepchildren and unmarried partners generally receive nothing under intestate succession (the default rules that apply when someone dies without a valid will). If you want to include a stepchild, an unmarried partner, or anyone outside the default legal categories, you must name them explicitly in your will or as a beneficiary on a non-probate account.

What You Can Do

• Update your will after every major life change — marriage, divorce, the birth or adoption of a child, a move to a new state, or the death of a named beneficiary. An outdated will is one of the most common sources of unintended disinheritance.
• If you live in a common-law property state and want to leave your spouse less than the elective share allows, understand that they can go to court to claim their statutory portion. Consult a licensed estate attorney in your state before finalizing such a plan.
• If you intend to disinherit a child, name the child in your will and make your intent explicit. Do not rely on silence — it may be read as an accidental omission under pretermitted-heir rules.
• Review your non-probate assets — life insurance policies, retirement accounts, and payable-on-death or transfer-on-death accounts — separately. These pass directly to named beneficiaries regardless of what your will says. An outdated beneficiary designation can unintentionally benefit someone you no longer want to include, or exclude someone you do.
• If you are a surviving spouse who was left out of or significantly underserved by a will, act quickly. The window to claim an elective share is limited and varies by state. Do not wait.
• Check your state's specific probate code, or consult a licensed estate attorney. The elective share percentage, the scope of pretermitted-heir rules, and the definition of community property all differ meaningfully from state to state.

This article is general legal information, not legal advice. Disinheritance and spousal protection rules are highly state-specific and subject to change. Always check the current probate and estate laws in your state or consult a licensed estate attorney before making decisions about your estate plan or asserting your rights as a surviving spouse or omitted heir.