Express Disinheritance Explained: Play it Safe

No money for you?

Let’s face it – families can be complicated. By some estimates, somewhere between 70-80 percent of Americans consider their families to be dysfunctional[1], at least 27 percent of Americans are estranged from a member of their own family, and a whopping 40 percent have considered themselves estranged at some point in time.[2] These numbers may be staggering at first glance, but they are not necessarily surprising. Many families tend to have someone considered the “black sheep,” the difficult or misunderstood family member whose relations with the rest of the family are strained. It’s no surprise, then, that we commonly receive requests from estate planning clients to expressly disinherit their estranged family members in their estate plan. While there are plenty of opinions across the Internet regarding how best to snub the family members you hate most in your estate, allow us to tell you why the best course of action is to simply not mention them at all.

The Probate Process in Florida

In the State of Florida, your will or trust is the most superior authority as to the distribution of your assets upon your death, so long as it produced according to the required formalities. This means that your will or trust supersedes Florida statute – specifically, the intestacy statutes – in determining where your assets go upon your death in the event that you do not have an estate plan.

Florida law provides full protection from disinheritance through your estate plan only to your surviving spouse and minor children. Under the law, you have an obligation to care for your child financially until he or she reaches adulthood, either by age or other circumstance, and your surviving spouse has a statutory right to a share of your estate. However, Florida law is silent with regards to your adult children, therefore allowing you to disinherit them so long as they are legally considered adults.

Interested Parties and What It Means to Be One

When a probate administration is opened in Florida, the petitioning party is required to give formal notice to all interested parties to the proceeding. By law, “interested party” refers to any person who “may reasonably be expected to be affected by the outcome of the particular proceeding involved,” though the specific meaning may vary on a case-by-case basis and “must be determined according to the particular purpose of, and matter involved in, any proceedings.” Essentially, the probate judge has discretion to determine interested parties during the administration of an estate.

Because the law is so broad in its definition, many probate judges at the outset of a probate matter will simply determine that every individual named in the will or trust is an interested party to the proceedings, including the trustee, personal representatives, beneficiaries, and, yes, any person specifically disinherited by your estate plan. Why? Because, by naming a person to be specifically disinherited, the outcome of the administration of the estate will explicitly affect them, in that they will receive nothing. By being named an interested party for the purposes of probate proceedings, they have been given legal standing to challenge the validity of your estate plan, and being disinherited gives them all the reason they need to initiate a challenge.

So, Why Does It Matter?

                You may be asking yourself at this point, “why would that be a problem, if my estate plan was properly put together by my attorney?” Consider, first, that the costs of administration will increase by forcing your personal representative to spend estate funds defending the challenge to the plan’s validity. Even if the challenge is frivolous, that money will still be wasted, because the challenge was invited by explicitly disinheriting an interested party in your estate plan when it wasn’t necessary to take this route.

More consequential is the possibility that the judge in charge of administration will take the challenge seriously, and that the disinherited party will have ammo to properly challenge the plan. When an individual contests a will or trust, the burden to prove the legal and factual merit of their contest is on that individual. However, once the contesting party has brought forth reasonable facts and circumstances to prove their case according to the law, the burden shifts to the other side to disprove the claim.

If a disinherited family member is allowed to bring forth a contest by the court, almost anything may become fair game for the purposes of discovery. This could include old text messages, letters, and witness testimony of the relationship between you and the other beneficiaries. A common argument by an estate contestant seeking to overturn the distribution plan is that there was some sort of undue influence going on, where one or more beneficiaries influenced the decedent to construct their estate plan the way they did.

Even if the disinherited party doesn’t have a strong case or decisive evidence that foul play was involved in the construction of your estate plan, you are still potentially giving that person an open invitation to have the probate court turn over every leaf of your family’s relationships between one another to get to the bottom of why one person was disinherited and another person was not. In particularly disastrous scenarios, this could add significant costs to your estate administration, leaving less for your intended beneficiaries, or result in your plan being adjusted to give the disinherited person a share.

Play it Safe – Stay Silent on Disinherited Parties

While the scenarios mentioned above are rarely successful, there is no need to open your estate up to added administrative costs that will take from your intended beneficiaries just because you want to make sure you snub someone one last time as you move on from this life. Even if the disinherited person does not have a great case, a jilted family member can become irrational and let their emotions drive them to move forward with a challenge, costing themselves and your estate a great deal of money. You never have to do anything that the law does not require you to do, and in Florida, the law does not require you to specifically disinherit adult family members, nor does it require you to leave them anything at all. The best thing you can do for your estate and intended beneficiaries is to talk less, smile more, and keep your estranged family members estranged from your estate plan as well.


[1] “What Does Having A ‘Real’ Family Mean,” Soulaima Gourani, Forbes, https://www.forbes.com/sites/soulaimagourani/2019/11/24/what-does-having-a-real-family-mean/?sh=3a20d5591871, Nov. 24, 2019.

[2] “What’s Ripping American Families Apart?,” David Brooks, New York Times Opinion, https://www.nytimes.com/2021/07/29/opinion/estranged-american-families.html, Jul. 29, 2021.

Michael J Faehner

Michael J. Faehner

Michael J. Faehner is the founder of Faehner PLLC in Oldsmar, Florida. Michael focuses his practice on estate planning, corporate,…

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