Under the laws of New York, if you die intestate (without a Will) some or all of your property would go to your children who survive you, in equal shares. However, you can choose to disinherit – leave nothing – to a child.

The disinherited child, of course, may have very hurt feelings, both against you and against the heirs who are ultimately receiving the money. As a result, the disinherited child may choose to challenge your Will: either by claiming that you did not have the mental capacity to write one, by claiming that you were under undue influence from unscrupulous people, or by claiming that the Will was not executed properly. Even if this Will challenge does not ultimately succeed, it can delay the process of asset distribution by years.

There are several ways to lessen the risk of a challenge. First, you can discuss your plan with your family and explain your rationale. This way, even if they disagree with your decision, by knowing that the plan was your idea, they may respect it. Second, you can leave your child something in a Will and simultaneously include a ‘no contest clause’, so that if the child challenges the plan, she stands to lose everything. For example, if you leave John $1MM and Mary $100K and include a ‘no-contest clause’, Mary stands to lose even $100K if he contests. Lastly, you can ensure that your assets pass to the intended beneficiaries outside of the Will (i.e. listing direct beneficiaries, placing assets into a Trust, etc). This way the disinherited children may not even be aware about the assets who pass to the other family.

It is very important to talk to a knowledgeable attorney about a proper way of setting up your documents. Contact Katya Sverdlov at ksverdlov@sverdlovlaw.com or 212-709-8112 if you want to discuss your planning further.