Most of the time, clients seek my advice and guidance regarding how to ensure that loved ones do receive assets from their estate after they pass away. Sometimes, however, I have a client who wants to ensure that someone does not receive an inheritance from their estate. You have an absolute right to distribute your estate in any (legal) way you wish within your estate plan. Allow me to explain, however, how to properly disinherit someone in your estate plan in Maryland.
Estate Planning Basics
Most people execute a Last Will and Testament as their first estate planning document. A Will can be used to distribute your entire estate; however, people often choose to add a trust to distribute the majority of their assets as their estate and family grow. A Will allows you to make both specific and general gifts. For example, you might make a specific gift of $100,000 to an adult child or leave a vacation home to a cousin. Another way to make gifts in your Will is to make general gifts. You might, for instance, split your estate equally between your three adult children. With one important exception, you are free to distribute your estate assets to anyone and in any way within your estate plan. You can also choose to leave anyone out of your estate plan – with that same exception (discussed below).
Simply failing to include someone in your Will (or trust), however, is not the best way to intentionally disinherit someone. In fact, failing to mention a legal heir in your Will often leads to more problems than solutions. Legal heirs are the people who would inherit from your estate using the state’s intestate succession laws and typically include a spouse, children, parents, and other close relatives. Not mentioning a legal heir frequently leads to a Will contest, or Caveat, claiming that the omission was an unintentional oversight on your part or that your failure to mention the heir is evidence of your lack of capacity at the time you executed your Will.
How Do I Disinherit Someone in Maryland?
If you wish to disinherit a legal heir, your estate planning attorney can draft the provision in your Will indicating your intention to disinherit. To ensure that your Will withstands scrutiny should it be contested, you should clearly name the heir that you wish to disinherit and state your intention to disinherit that individual. You are not required to explain your choice; however, you should make your choice clear within your Will or trust agreement.
Can I Disinherit My Spouse in Maryland?
The one important exception to your right to distribute your estate in any way you wish applies to a spouse. Like many states, Maryland has an “elective share” law that entitles your spouse to a percentage of your estate without regard to the terms of your Will or trust. There are several common reasons why you might want to disinherit a spouse, including a desire to protect children from a previous marriage, your status as separated or in the process of divorce, and based on provisions made to provide for your spouse outside of your Will.
While these are all valid reasons to want to disinherit your spouse, Maryland law prohibits you from doing so. Under the Maryland elective share law, your spouse is entitled to one-third of your estate if you are survived by descendants and one-half of your estate if you are not survived by descendants.
Moreover, legislation went into effect in 2020 that expanded the assets included in the calculation of estate assets and that are, therefore, subject to election. The new law makes it more difficult to circumvent the elective share law by keeping assets outside of probate – a loophole that was previously exploited by many people seeking to disinherit a spouse.
Do You Wish to Discuss How to Disinherit Someone in Maryland?
For more information, please contact our estate planning office in Owings Mills, Maryland by calling 410-654-3850 to schedule an appointment.
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