People in Maryland can write practically whatever terms they want in their wills, but that does not mean the probate courts will honor those terms. Let's say that you want to leave nothing to the person who would ordinarily inherit a portion of your estate. You might be angry at the person, or you might have agreed, for example, with your spouse, that they will take nothing under your will. Take it from a Maryland estate-planning attorney—this may not be entirely legal.
Common Disinheritance Scenarios
The worst way to disinherit someone is simply not to mention the person in your will. A probate court could assume that you forgot to include the person in the document. The person could petition the probate court to receive his share, claiming that the omission was accidental.
Regardless of the reason you want the person to receive nothing from your state, if Maryland law provides that she has a right to a portion of your estate, she can receive it through the probate court. This situation can arise in second marriages, in which each spouse agrees not to inherit from the other and that each spouse's assets will go to their children instead of the surviving spouse.
If these spouses then create simple wills leaving everything to their respective children, the surviving spouse can try to force an elective share of the decedent's estate through the probate court. Verbal promises made to each other will not take away the surviving spouse's right to part of the decedent's estate.
Some people try to get around the statutory share of the survivor by leaving a small amount to the surviving spouse in the will. The surviving spouse can also challenge this tactic in the probate court and seek his statutory share.
Be aware that it is possible to disinherit any statutory heir, whether by agreement or not, if the person does not challenge the issue in the probate court. The outcome will depend on what the probate judge allows.
Reasons Not to Disinherit a Natural Heir
There might be extra fact-finding and hearings in the probate process to justify to the judge the reason that a natural heir is receiving nothing or less than the statutory share through the will. The estate must pay the legal fees for the lawyers to handle this additional work. As a result, there will be less money left in the estate to distribute to the decedent's loved ones. Also, the additional work will delay the process, which postpones when the beneficiaries receive their assets.
If the court disallows the disinheritance or a natural heir successfully challenges the will, the attempted disinheritance will be a waste of the money spent to draft the disinheritance provisions in the will and to defend the will. Again, the beneficiaries will receive less money from the reduced estate and have to wait longer to get what they do receive.
Further, if the beneficiaries were aware of the disinheritance, they might be shocked to discover how much less they will receive after the surviving spouse receives his elective share. A surviving spouse can get one-third of the net estate if the decedent left surviving descendants or one-half of the net estate if the decedent had no children or other descendants.
Thinking About Disinheriting Someone? Talk to an Experienced Maryland Estate-Planning Attorney
A Maryland estate-planning attorney can answer your questions about disinheritance and how to accomplish your goals and wishes for your estate. Contact Thienel Law today to schedule a time to review your estate plan soon. Maryland estate-planning lawyer Steve Thienel is dedicated to assisting clients in Maryland, Virginia, and throughout the DC Metro area.