A New Jersey appellate division case addresses an interesting issue concerning a person’s last will and testament.  A Will is called a Will because it represents the free will of the decedent.  In other words, Mr. Smith makes his Will leaving his entire estate to his children.  This document, which we call a Will, represents the free choice/will of Mr. Smith to leave his estate to his children.

For the most part, a person can leave his estate in any manner that he chooses.  Mr. Smith, for instance, could disinherit one of his children if he wanted to disinherit a child.  Mr. Smith doesn’t even have to have a reason to disinherit one of his children.  He might chose to disinherit a child simply because he was mad at the child.

Maybe the child said something that angered Mr. Smith, so he decided to disinherit the child. That’s perfectly acceptable.  The assets that comprise Mr. Smith’s estate are his, and he can do what he wants with his assets.  If it is Mr. Smith’s desire (or will) to disinherit his son, then Mr. Smith can write his Will in this manner.

The only person whom a person cannot effectively disinherit is a spouse. A spouse always has the right to file a claim against the estate of the deceased spouse.  For instance, if Mr. Smith disinherited his wife, then after Mr. Smith’s death, his wife could file a claim against his estate.

This claim is called the “elective share.” Very roughly speaking, an elective share claim is worth one-third of the estate.  So, if Mr. Smith disinherited Mrs. Smith, Mrs. Smith could file a claim against Mr. Smith’s estate.  Mrs. Smith would receive one-third of the Smith’s total estate in satisfaction of her elective share claim.

There is one exception to the statement that a person can leave his estate any way in which he chooses. An inheritance cannot be contingent on a requirement that violates public policy.  Our courts do not review the motivation behind a decedent taking an action in his Will, but our courts will not enforce a provision in a Will that requires a violation of public policy.

This distinction can best be explained by an example. Mr. Smith could disinherit a child because the child converted to a religion that Mr. Smith did not support.  Mr. Smith cannot condition an inheritance on a child converting to a specific religion.

Disinheriting the child because Mr. Smith was a bigot is perfectly acceptable. As stated, it’s Mr. Smith’s money, so he can do what he wants with his money.  But Mr. Smith cannot make someone else do something that violates public policy in order to receive an inheritance.

In the appellate division case, it was alleged that a daughter was disinherited because she had a relationship with a Jewish man. The Court said, maybe that is why she was disinherited, but that bigoted motive is irrelevant.

A will gives you broad authority to decide how your estate will be distributed, but that authority is not unlimited. Understanding the legal limits on testamentary gifts can help ensure your wishes are carried out as intended.