New York does not require you to leave your children anything. Unlike a spouse, who has a statutory right of election under EPTL 5-1.1-A, children have no automatic claim on your estate. One exception: an after-born child neither provided for nor mentioned in the will. An after-born child gets an equal share of what the will gives the other children, drawn ratably (EPTL 5-3.2(a)(1)(B)), and nothing if the will gives them nothing. If you had no children when you signed, the child takes an intestate share (5-3.2(a)(2)) — so update your will after each birth or adoption. But being permitted to disinherit a child and having that disinheritance survive a will contest are two different things, and the gap between them is almost entirely about drafting.
Silence is the most common mistake
Simply leaving a child out of your will without mentioning them is the least effective way to disinherit them. New York's Surrogate's Court Procedure Act requires that all of a decedent's distributees, including children, be cited in the probate proceeding under SCPA 1403, precisely so they have the opportunity to contest the will if they believe they were omitted by mistake or as a result of fraud, undue influence, or lack of capacity. An unexplained omission invites exactly that kind of challenge.
Name the child and state your intent
The stronger approach is to name the child specifically and state affirmatively that you are leaving them nothing, or leaving them a specific token amount, intentionally. Language stating that the testator has intentionally made no provision in the will for a named child, for reasons known to that child, removes any ambiguity about whether the omission was deliberate. This alone undercuts the most common narrative for a challenge, since the contest can no longer plausibly be about a drafting oversight.
Address capacity and undue influence risk directly
Disinheritances are frequently challenged on the theory that the parent lacked capacity or was unduly influenced by another beneficiary. To reduce that risk:
- Have the will executed with careful attention to the formalities in EPTL 3-2.1, including two attesting witnesses and, ideally, a self-proving affidavit
- Consider a contemporaneous letter or memo, kept separate from the will, explaining your reasoning, which can be persuasive evidence of intent and capacity, though it is not itself part of the testamentary document
- If capacity could later be questioned, consider a doctor's evaluation near the time of signing
- Keep the beneficiary who stands to gain out of the planning meetings and the signing
Consider a no-contest clause, with realistic expectations
New York enforces in terrorem, or no-contest, clauses, which can cause a beneficiary to forfeit what they were left if they unsuccessfully contest the will. This tool only works if the disinherited child is left something to lose; leaving them nothing at all removes any deterrent effect, since they have nothing to forfeit by contesting.
Disinheritance decisions are emotionally difficult and legally precise at the same time. Our wills and estate planning team drafts these provisions to withstand scrutiny, not just to express intent. Call +1 212 518 3868 or schedule a free consultation to make sure your wishes actually hold up.
