General Rule? Take Care of the Spouse and Kids

Sep 6, 2018 | Estate Planning, No Contest Clause, Trusts, Will

Senior couple working with laptop at home

Many families are similar when it comes to creating a will.  However, sometimes a family member gets left out.  That must be done carefully.

There are some exceptions.  However, the usual plan in estate planning is to take care of the family, according to’s “Estate Planning: Excluding a loved one from the plan.”

The exceptions are mainly because of family dynamics and those times the person is not married or doesn’t have children.  However, sometimes even a regular old-fashioned “Mom and Dad and Brother and Sister” family has a reason why one or more of the kids are left out of the will.

If someone needs to be excluded, for whatever reason, your estate planning attorney will create a will that accomplishes this. Some people think that instead of excluding someone entirely, they should leave something small, or that they are required to leave something, and the best solution is to leave $1. That’s not true and could lead to problems with settling the estate.

The person who is most problematic to exclude from your estate, is your spouse. They have certain legal rights that are not easily overcome.

Another common question concerns the “no contest” term. These causes provide that if anyone challenges the will, there is a penalty. Some states do not recognize this clause, so there’s no point to using it. Your estate planning attorney will know the laws for your state and be able to advise you about whether you can use this to exclude someone from your will.

The bottom line: your will should reflect your wishes and accomplish your goals. If a family member has a problem such as a substance abuse problem or is not able to manage money, an estate planning attorney can work with you to either exclude them from your will, create a trust with guidelines (i.e., requirements to be engaged in a rehab program or be gainfully employed) or distribute your assets at certain periods of time.

An estate planning attorney can advise you in creating an estate plan that fits your unique circumstances.

Resource: (Aug. 5, 2018) “Estate Planning: Excluding a loved one from the plan”