Can I Legally Disinherit My Child

Emily just received a frantic call from her daughter, Kai. Kai’s father – Emily’s husband of 40 years – had passed away unexpectedly. He’d always verbally promised Kai a significant share of his antique car collection, but a recently discovered codicil to his Will specifically excluded her. The codicil was handwritten, appeared to be signed, but wasn’t witnessed. Emily now faces a legal battle potentially costing $50,000+ to challenge the codicil’s validity, all while grieving her loss. This scenario, unfortunately, is far too common. Let’s discuss the legal realities of disinheritance in California.

As an Estate Planning Attorney and CPA with over 35 years of experience here in Escondido, I’ve guided countless families through these sensitive situations. Clients often assume they can simply remove a child from their Will, but California law, while generally allowing freedom of testamentary disposition, has specific requirements and potential pitfalls. The CPA perspective is crucial here; understanding the tax implications – especially the step-up in basis and potential capital gains – is vital when restructuring wealth transfer. A poorly planned disinheritance can trigger unintended tax consequences for both the disinherited child and the beneficiaries receiving the assets.

What Constitutes Legal Disinheritance in California?

Complete disinheritance isn’t about spite; it’s a legal act requiring meticulous execution. It’s not enough to simply cross out a beneficiary’s name or add a statement saying “I disinherit my child.” Those actions are often legally ineffective. To effectively disinherit a child, you must clearly and unequivocally state your intent in a validly executed Will or Trust. This means adhering to all statutory requirements for witnessing, signing, and notarization.

What are the Requirements for a Valid Will in California?

California Probate Code § 6110 outlines the stringent requirements for a valid Will. It must be in writing, signed by the testator (the person making the Will), and witnessed by at least two disinterested parties—meaning individuals who do not stand to benefit from the Will. The witnesses must observe the testator signing, or the testator must acknowledge their signature to the witnesses. Failing to meet even one of these requirements can invalidate the Will, leaving your assets subject to the laws of intestacy (distributed according to a statutory formula). While California allowed temporary remote witnessing during the pandemic, the law (CPC § 6110) has reverted to requiring strict simultaneous presence; remote signatures are generally invalid for Wills unless they meet the narrow ‘Electronic Will’ standards of AB 298.

Can a Beneficiary Witness Disqualify My Will?

This is a frequent concern. California Probate Code § 6112 states that an ‘interested witness’ (a beneficiary) triggers a legal presumption of duress or fraud. Unless there are two other disinterested witnesses, the beneficiary may lose their gift, taking only what they would have received under intestacy rules. For example, if your Will leaves your car collection to your son but he’s one of the two witnesses, that gift is likely invalid. The court will presume undue influence, and your son could be forced to prove the gift was freely and voluntarily given, a very difficult task.

What if My Will Has Mistakes in Execution?

Minor errors aren’t always fatal. Probate Code § 6110(c)(2) (Harmless Error) allows the court to validate a signature-defective Will if there is ‘clear and convincing evidence’ of the testator’s intent; however, this requires a costly court petition and is not a guaranteed safety net. It’s far better to ensure proper execution upfront. A simple mistake like initialing instead of signing, or a witness signing in the wrong place, can create significant legal hurdles.

What About Trusts? Are They Better for Disinheritance?

Revocable Living Trusts offer a more robust and often preferable method for disinheritance. Unlike Wills, Trusts don’t require court probate, providing greater privacy and efficiency. Because you transfer assets into the Trust during your lifetime, your instructions regarding distribution are implemented immediately upon your death, without the need for judicial validation. However, the Trust document must be equally precise in disinheriting a child, and you must properly fund the Trust with your assets.

What if I Change My Mind After Disinheriting a Child?

You can always revise your Will or Trust. But it’s crucial to do so formally and with the same level of legal rigor as the original document. A simple handwritten amendment (a codicil) must also meet the same witnessing and signing requirements as the original Will. Remember Emily’s situation; an improperly executed codicil can lead to expensive litigation.

What Happens if My Will is Invalidated?

If a Will is invalidated, assets fall under intestacy; however, for deaths on or after April 1, 2025, estates with personal property under $208,850 (per CPC § 13100) may still bypass full probate via affidavit. This simplifies the process for smaller estates, but doesn’t alter the distribution scheme mandated by law. California’s intestate succession laws prioritize spouses and children, meaning a disinherited child might still receive a portion of your estate.

How Can I Protect My Digital Assets During Disinheritance?

With the increasing value of digital assets – online accounts, cryptocurrencies, digital artwork – it’s essential to include provisions addressing them in your Will or Trust. RUFADAA 2.0 (SB 1458), effective 2025, California law (CPC § 871) was expanded to grant fiduciaries power over digital accounts; however, you must still grant explicit RUFADAA powers in your Will or Trust to bypass federal privacy blocks. Without clear instructions, accessing these assets can be exceedingly difficult for your executor or trustee.

Finally, including a self-proving affidavit, as outlined in Probate Code § 8220, allows the Will to be admitted to probate without the testimony of the subscribing witnesses, significantly accelerating the court’s approval process.

What does a California probate court look for when interpreting testamentary intent?

In California, a last will and testament is reviewed under probate standards that focus on intent, capacity, and execution. Clear drafting reduces ambiguity, limits misinterpretation, and helps families avoid unnecessary conflict during estate administration.

To create a valid document, you must ensure the signer has testamentary capacity, strictly follow California will rules, and ensure you are correctly identifying the will maker to prevent identity disputes.

For California residents, understanding how intent, authority, and compliance interact is one of the most effective ways to protect family harmony and estate integrity. A will that anticipates probate scrutiny is far more likely to be honored as written and far less likely to become the source of unnecessary conflict.

Resources for Legal Standards & Probate Procedure

• Escondido Local Rules: San Diego Superior Court – Probate Division
  Access the essential “Local Rules” (Division IV) effective January 1, 2026. This includes mandatory e-filing procedures, current Probate Examiner notes, and Local Rule 4.4.5 regarding remote appearance requirements (via MS Teams) for non-evidentiary hearings.
• Attorney Verification: State Bar of California
  The official regulatory body for California attorneys. Use this to verify a lawyer’s “Certified Specialist” status in Estate Planning or to access 2026 guidelines on the ethical handling of Client Trust Accounts (IOLTA).
• Self-Help & Forms: California Courts – Wills, Estates, and Probate
  The Judicial Council’s official portal. It includes the updated 2026 forms for the $208,850 personal property threshold and the $750,000 “Primary Residence” simplified transfer procedure (AB 2016).
• Federal Estate Tax: IRS Estate Tax Guidelines
  The authoritative federal resource for estate and gift tax filing. It reflects the 2026 “OBBBA” permanent exemption of $15 million per individual, replacing the previously scheduled Tax Cuts and Jobs Act (TCJA) sunset.