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What Can You Do If Your Dad Leaves Your Out of His Will?

March 10, 2019
David Parker, Esq.
David Parker, White Plains and New City NY Estate Planning Attorney
David Parker, Esq.
David Parker is an attorney who specializes in Estate Planning and Elder Law and has been practicing law for 30 years. Be it Wills, Trusts, Powers of Attorney, Health Care Proxies, or Medicaid Planning, David provides comprehensive and caring counsel for seniors and their families. A large portion of David’s practice is asset protection strategies so that families do not lose their hard earned savings to nursing home care costs. He also handles probate administration for the settlement of estates.
There are limited actions you can take, if you're disinherited.

If your father divorces your mother to marry a younger woman, it’s not unlikely that your step-mother will make your dad change his will. The step-mother may then stand to inherit everything. Is there anything the disinherited child can do?

Unless there were some specific circumstances concerning the dad, there's probably nothing the child can do, says in the recent article “My step-mother changed my dad's will. I got nothing. What can I do?”

In the U.S., for the most part, a person has the right to leave his or her property and assets to whomever he or she chooses. It’s called "freedom of disposition." However, even in the United States, some classes of beneficiaries have the right to take 'against' the will." For instance, a surviving spouse can claim an elective share of an estate if he or she is disinherited. The rules for granting an elective share are complicated. However, the thought behind the law is that a spouse has the obligation to provide for the support of his or her spouse and by disinheriting the spouse, they’re violating this duty.

In the U.S., adult children typically don’t have any right to inherit from a parent.

To overcome this, a child would need to prove that his father didn’t act of his own free will. The child would need to show that his stepmother “unduly influenced” his father to change his prior will and leave everything to her. If successful, the father’s property would be distributed according to his last valid will, or if there is no will, according to the intestacy statute.

Proving undue influence can be quite difficult to do. The child would have to show that the step-mother was in what is known as a "confidential" relationship with the father and that there are suspicious circumstances. If so proved, the burden of proof shifts to the step-mother to show that she didn’t unduly influence the father.

This process can become very technical, and each case is very fact specific. If the father was working at his job at the time of his death, it will be extremely difficult to prove he lacked free will. However, if he’d stopped working and had diminished capacity, it would be easier to show undue influence.

Talk to an experienced estate planning attorney about pursuing this type of action.

Reference: (February 8, 2019) “My step-mother changed my dad's will. I got nothing. What can I do?”


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