Disinheritance Clause
(Short Form) (CA)

Summary

This is a short-form disinheritance clause that may be used in California to disinherit persons who are not beneficiaries under the will. This template includes practical guidance, drafting notes, and alternate clauses. The first clause in this template is a general disinheritance clause that does not name specific persons, while the second is a disinheritance clause that may be used to name a specific person or persons, and, if desired, to state the reason for the disinheritance. The first alternate clause will be used in most wills as a general clause to disinherit all of the testator's heirs except those provided for in the will. The second alternate clause may be used in more limited circumstances, that is, if the testator wishes specifically to disinherit a person or persons who might otherwise claim that the testator mistakenly believed them to be dead, or was unaware of their birth. The purpose of a disinheritance clause is to clearly state the testator's intention not to provide for persons who would otherwise be entitled to inherit all or part of the estate. A disinheritance clause applies only to persons who would inherit the estate if the testator did not intentionally disinherit them (that is, omitted or "pretermitted" heirs) and is to be distinguished from a no contest (in terrorem clause), which is designed to discourage beneficiaries under the will from contesting its provisions. Because contesting beneficiaries may take all or part of the estate under the laws of intestate succession or under a former will, their interests depend on defeating the will. Omitted heirs (a spouse, registered domestic partner, or child of the testator, under certain circumstances), in contrast, do not "contest" or "challenge" the will, but take in spite of it. A disinheritance clause should be used with caution and only after a full consideration of its consequences. While it is only natural that a testator should wish to preserve the testamentary plan embodied in the will and to protect it against contest or challenge, the testator should understand that the omitted heir statutes are designed to protect persons who are typically objects of a testator's bounty and that if those persons are not provided for in a will it is often because the testator did not consider them. The will should not attempt to disinherit those persons unless the testator has in fact considered them and determined that they will not benefit from the will. For a full listing of key clauses for use when drafting last wills and testaments, see Will Clauses Resource Kit. For more in-depth discussion about wills, see Purposes and Uses of a Will (CA), Requisites, Instrumentation, and Will Provisions (CA), and Revocation, Revival, and Will Contests (CA).