Can You Disinherit Family in New York?
A client recently came to my office with a firm intention. After a lifetime building a business in Manhattan, he wanted his will to leave the entirety of his estate to his business partner. He had an estranged wife and an adult son from that marriage, and he wanted to ensure they received nothing. His question was direct: “Is my will the final word?” In New York, the answer is yes—and no.
This is a common point of confusion. Many legal systems operate under a civil law code that mandates “forced heirship,” where a certain portion of an estate must pass to the children. New York is a common law jurisdiction. Here, the freedom to dispose of your property as you see fit is a foundational principle. With one major exception.
The Power to Disinherit a Child
In New York, you can disinherit your child. No law forces you to leave any part of your estate to your children, regardless of their age or financial need. If your intention is to leave your entire legacy to a sibling, a friend, or a charity instead of your son or daughter, you have the legal right to do so.
This intention, however, must be expressed with absolute clarity in your will. A will that simply omits a child’s name without explicitly stating the intention to disinherit is an invitation to litigation. The omitted child could launch a will contest in Surrogate’s Court, arguing they were forgotten or that the omission was a mistake. To prevent this, a prudently drafted will should name the child and then affirmatively state that you are intentionally making no provision for them. It feels harsh, but this clarity is a shield against future conflict and protects the integrity of your plan.
The Spousal Right of Election: A Powerful Protection
While you can disinherit a child, your spouse is another matter entirely. New York law provides a powerful backstop for a surviving spouse to prevent their complete disinheritance. This is not “forced heirship,” but a “right of election.”
Under New York Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, a surviving spouse has the right to claim a share of the deceased spouse’s estate, even if the will leaves them nothing. This “elective share” is the greater of $50,000 or one-third of the net estate. It is a legislative recognition that a marriage is an economic partnership, and one partner should not be left destitute by the other’s will.
Crucially, the “net estate” for these purposes is not just the property passing through the will. The law is designed to prevent someone from circumventing a spouse’s rights by moving assets out of their probate estate before death. The calculation includes “testamentary substitutes”—assets like certain jointly held bank accounts, gifts made within a year of death, and assets held in a revocable trust. The law takes a broad view of the decedent’s wealth.
The only way to waive this spousal right is through a clear and properly executed legal agreement, typically a prenuptial or postnuptial agreement. Without such an agreement, the right of election remains a powerful contingency that must be accounted for in any estate plan.
Stewardship Means Planning for Reality
Estate planning is not a theoretical exercise. It is the practical stewardship of a lifetime of work, designed to provide for the people and causes you care about. For families with complex dynamics—blended families, second marriages, or estrangements—these rules are not abstract. They have profound, real-world consequences.
Attempting to disinherit a spouse without a valid waiver is almost certain to fail and will likely lead to a protracted and expensive court process. Similarly, attempting to disinherit a child without the necessary clarity invites challenges that can drain the estate and fracture family relationships further. A deliberate plan acknowledges the legal realities and builds a structure that is resilient and clear.
The law provides the rules, but within those rules, there is significant room for intentional planning. Trusts, carefully titled assets, and precisely worded wills are the tools we use to execute your wishes while respecting the boundaries established by law. The goal is to create a plan that works in the real world, not just on paper.
If your will was drafted before a major life event like a marriage or the birth of a child, or if it no longer reflects your relationships, it may not function as you intend. We can schedule a confidential review of your existing estate documents to analyze how New York’s laws on spousal rights and disinheritance impact your specific legacy goals.
