Disinheritance: What If You are Left Out of the Will?

Disinheritance is the omission of a spouse or children from a will. The principal protection of a surviving spouse against disinheritance is his or her share in the  community property. Each spouse has the power to dispose of only his or her half of the community property, as well as his or her separate property. Arizona law gives either spouse power separately to dispose of community property, except that both must join in disposition of most interests in real property.

Omitted Spouse

If a person executes a will and later marries, Arizona law gives the surviving spouse an intestate share unless:

1. the will showed that the spouse’s omission was intentional,
2. the will states that it is to be effective notwithstanding any subsequent marriage, or
3. the testator (the person who executes a will) made a transfer of property outside the will which can be shown to have been intended as a substitute for provision by will.

This rule does not apply, however, to any property bequeathed to the testator’s child or children who are born prior to the testator’s marriage to the surviving spouse. Because it is common for such an individual to have a will leaving everything to the children from a prior marriage, it is possible that an omitted spouse will also be a disinherited spouse.

Omitted Children

Children born or adopted after execution of a will may be unintentionally omitted from the will, in which case they are entitled to an intestate share. Children receive no intestate share if there is a surviving spouse and the children of the decedent are also the children of the surviving spouse. This means the omitted children will benefit only when:

1. there is no surviving spouse, or
2. there is a spouse but the children of the testator are by a prior marriage.

The omission of a child is treated as unintentional except in the following situations:

1. when the testator’s will shows intent to exclude an after-born child,
2. where the will, executed when the testator has one or more children, leaves substantially all his estate to his wife, who is the mother of the after-born child, and
3. where the testator provides for the after-born child by a transfer outside the will, which is intended to be in lieu of a share in the estate.