The general rule in the law in the United States is that any person may be disinherited or excluded from sharing in the estate of a decedent. Are there any exceptions to this general rule? Yes, there are exceptions to this rule. In many states, a spouse cannot be disinherited. Florida is an example of a state which has a forced inheritance for a surviving spouse (Fla. Stat. §732. 201). The amount of the ‘elective share’ in Florida is thirty percent of the elective estate(Fla. Stat. §732. 2065).
Many states which follow community property laws do not allow for the disinheriting of a spouse’s share of community property. Also, some states do not allow minor children to be disinherited. Again, Florida has such a protection via Fla. Stat. §732. 4015, which prohibits homestead real property to be devised when the decedent is survived by a spouse or minor child. Louisiana has a unique “forced heirship” law which prohibits the disinheriting of a minor child, defined as any child under the age of 23 or mentally or physically incapacitated (LA. Civ. Code Art. 1493).
There are other instances in which one cannot be disinherited. One example of this occurs when a right to inherit arises out of a contractual obligation of the decedent. Does Jill Gates have an interest in Joey Joe’s estate? Why or why not? Whether or not Jill Gates has an interest will depend on the laws of state that Joey Joe died in. In Florida, as an example, the analysis would be as follows: Jimmy’s right to inherit from his father terminates via the “anti-killer statute” (Fla. Stat. §732. 802).
He is treated as having pre-deceased his father. Because the devise to him is per-stirpes, his next of kin will inherit his share. However, because Jill was adopted, Fla. Stat. §732. 108 states that she is no longer a descendant of her natural parents and therefore, she cannot inherit as Jimmy’s next of kin (unless she is covered under one of the exceptions to the rule). Regardless of the state being examined, these are the issues which must be addressed.