Idaho Law Blog
By Lane V. Erickson, Idaho Estate Planning Attorney
In working as an estate planning attorney for nearly 20 years I have had numerous clients come to me who want to disinherit an individual from their estate. Idaho law allows an individual to disinherit others from their estate if they choose to do so. However, it a disinheritance never just works automatically. Rather, there are very specific things that have to be done in order for a disinheritance to actually work. If you are thinking about disinheriting somebody from your estate through your Idaho estate planning here are three things that you should know.
Who Can I Disinherit?
The most important question in the starting place if you are considering disinheriting somebody is understanding who you can disinherit. In almost every state including Idaho a parent can choose to disinherit their child. However, you must understand that in the states including Idaho the law doesn’t necessarily favor disinheritance. Because of this if you want to validly disinherit one of your children you are last will and testament has to contain very specific language.
If your last will and testament is ambiguous about whether you are disinheriting a child, or if the language you use is simply unclear, the disinheritance will not happen. To make a disinheritance valid your last will and testament must be very clear about the name of the child, and how extensive the disinheritance is. In other words, you must state whether the disinheritance includes all of your assets or whether it just includes some specific assets.
It may also be possible for you to disinherit your spouse, at least as to some of your property. However, it is unlikely that you would be able to completely disinherit your spouse from all your property because of the applicable laws in Idaho. The next section will provide more information about what you can and cannot disinherit your spouse from.
What Property Can I Disinherit Someone From?
Because Idaho is a community property state the law presumes that all property you own with your spouse during your marriage is community in nature. Community property is owned 1/2 by the husband and 1/2 by the wife. Because of this, if a wife were to try to disinherit their husband from their estate, it would only work as to the property that the wife owns individually.
A disinheritance of a spouse is easier when they own separate property. In that instance in the wife’s last will and testament she could validly and legally exclude her husband from receiving any portion of her separate property. However, when it comes to community property a disinheritance of a spouse is much more difficult.
If you truly want to accomplish this the best and easiest way to do so is to have both spouses enter into a property separation agreement. Some individuals do this before they’re married in a prenuptial agreement. However even couples who have been married for a long time can enter into what we call a marital property agreement. this allows each spouse to be specific about the property they claim no community property interest in. By doing this, they are allowing the spouse to have complete control over the property that is listed, including disinheriting them from that property if they choose.
What Happens if a Disinherited Person Challenges the Disinheritance?
Any person who is disinherited can challenge the disinheritance. Really what the person would be doing is challenging the language that would be in the last will and testament that creates the disinheritance in the first place. This is accomplished when the person challenges either the legal validity of the language in the last will and testament, or more commonly, challenges whether the individual who created the will knew what they were doing. If they can show that the individual did not have legal capacity, then the last will and testament will be declared invalid and the disinheritance will not be enforced.
ENLIST AN ESTATE PLANNING ATTORNEY TO HELP YOU
When it comes to estate planning or probate you should never try to do it alone. If you have questions for yourself or for your family and loved ones, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at lve@racinelaw.net. We will answer your questions and will help you solve your Idaho Estate Planning problems.