IT’S YOUR MONEY, SO IT’S YOUR WAY
A Will allows you to leave your assets to whomever you wish. A Will also allows you to avoid leaving your assets to whomever you wish, that is, to disinherit someone.
While some people want to ensure that all of the members of their family receive an equal share of their estate, this certainly is not always the case. A person may wish to disinherit a family member for many reasons.
For instance, perhaps when a Mother required assistance with some of the basic activities of living – such as clothing and eating – her daughter moved in with her and helped her with those tasks. The daughter took time out of her day and out of her life to aid her aging Mother. Perhaps the Mother’s son never helped her. Perhaps the son didn’t even bother to come to the Mother’s house to check on her and make sure she was as comfortable as possible.
It wouldn’t be surprising given this fact pattern if the Mother decided to leave any assets she might have at the time of her death to her daughter, disinheriting the son. After all, the Mother’s relationship in this situation is much stronger with her daughter. And, even though the Mother may love the son, as a mother would love her child, our hypothetical Mother may believe that her daughter simply deserves any money that she may have.
Maybe a parent wishes to disinherit a child, because the child is very well off financially and doesn’t need the money, while other children could benefit from the inheritance. There are many reasons why people wish to disinherit certain family members or wish to leave disproportionate shares of their estate to given family members.
The question is, can you disinherit a family member or do you have to leave them a share of your estate? Is it better to leave someone a token amount, say $1, instead of disinheriting them altogether?
In New Jersey, there is only one family member that you cannot disinherit, a spouse, unless the spouse consents to being disinherited. A spouse who has been disinherited and who did not consent to being disinherited has the right to assert what is called an “elective share” against the estate of the deceased spouse. Though there is formula for calculating the value of the elective share, it is roughly worth one-third of the estate. In other words, even if you disinherit your spouse, he or she can make a claim for one-third of your estate.
As for everyone else – family members other than a spouse and friends – they have no claim against your estate. You can disinherit anyone you chose – for whatever reason or for no reason at all. It’s your money, so how you chose to leave it at time of death is your choice. Just as in life, you can dispose of your money in any way that you see fit.
Sometimes people will ask me if they should leave a token amount to a family member to prevent any “trouble” when they die. Personally, I don’t think someone receiving $1 as opposed to $100,000 is any less likely to cause trouble. So, my answer is, no, leaving a token amount in and of itself is probably not helpful.
But stating why you are leaving your estate in the manner you are probably would be helpful. For example, if our Mother in the example above did wish to leave her entire estate to her daughter, she may wish to recognize in her Will that she has two children, that she is choosing to leave her estate to her daughter because of their relationship, and that she is disinheriting her son because of the lack of a relationship. Now someone looking at her Will would know that the Mother knew she had two children and would have a logical explanation for why she left her estate the way she did.