Yes — under New York law you can disinherit most people in your will, including adult children, siblings, friends, and more distant relatives. There is one major exception: you generally cannot fully disinherit a surviving spouse. New York’s spousal right of election under EPTL 5-1.1-A gives a surviving husband or wife the power to claim a minimum share of your estate regardless of what your will says. So while a clearly drafted, properly executed will is the most powerful tool you have for controlling who inherits, it operates inside firm statutory guardrails. At Morgan Legal Group, led by Russel Morgan, Esq., our estate planning practice spans the full library of documents New Yorkers need to direct their legacy with confidence — and to do it in a way that survives scrutiny in the Surrogate’s Court.
This article explains who you can and cannot disinherit in New York, how the spousal right of election works, and how a coordinated set of properly drafted documents protects your intentions.
Who Can — and Cannot — Be Disinherited in New York
New York is unusual in how it treats different family members. The single most important distinction is spouse versus everyone else.
| Person | Can you disinherit them? | Governing law / mechanism |
|---|---|---|
| Surviving spouse | No — they may claim an elective share | EPTL 5-1.1-A (right of election) |
| Adult children | Yes | No forced-heirship for children in NY |
| Minor children | Yes (but plan carefully for support obligations) | No statutory share via will |
| Parents, siblings | Yes | No protected share |
| More distant relatives | Yes | No protected share |
| Anyone, if you die with NO will | Distribution set by statute | EPTL Article 4 (intestacy) |
A crucial point that surprises many people: New York does not protect children from disinheritance. Unlike a spouse, an adult or even minor child has no automatic right to a share of your estate under your will. If you intend to leave a child out, however, the will should say so plainly. Silence can invite a challenge that the child was simply forgotten; a deliberate, well-drafted disinheritance clause removes that ambiguity.
The opposite scenario matters too. If you die with no will at all, you cannot disinherit anyone — the rules of intestacy under EPTL Article 4 distribute your property to your next of kin in fixed shares, with a spouse and children at the front of the line. Disinheritance is only possible through an affirmative, valid will. You can learn more on our Intestacy & Dying Without a Will page.
The Spousal Right of Election: EPTL 5-1.1-A
The one heir New York refuses to let you cut out entirely is your spouse. Under EPTL 5-1.1-A, a surviving spouse who is dissatisfied with what the will leaves them (including nothing) may file a written, timely election to take a statutory minimum share of the estate instead.
The elective share is designed so a spouse cannot be reduced to a token bequest while the rest of the estate flows elsewhere. Importantly, the right of election reaches beyond the probate estate alone — New York counts certain non-probate transfers (so-called testamentary substitutes, such as some jointly held property and certain accounts) when calculating the spouse’s share. This is precisely why “I’ll just leave everything to the kids in joint accounts” is rarely a clean way to disinherit a spouse.
A few practical realities about the right of election:
- It belongs to the surviving spouse alone and must be affirmatively exercised — it is not automatic.
- It must be exercised in writing and within the statutory timeframe; missing the window can forfeit the right.
- A spouse can waive the right of election in advance through a properly executed prenuptial or postnuptial agreement.
- A surviving spouse can lose the right in defined circumstances (for example, certain marital misconduct or abandonment recognized under the statute).
Because the elective share interacts with the entire architecture of your estate — your will, your trusts, your beneficiary designations, and your joint property — disinheriting or limiting a spouse is rarely a one-document job. It is a planning problem that touches many instruments at once, which is where a full-service drafting practice earns its keep.
Why a Properly Executed Will Is the Foundation
You cannot disinherit anyone unless your will is valid. In New York, a will that is not executed correctly may be denied probate — and if there is no valid will, intestacy controls and your disinheritance wishes evaporate. Will execution in New York is governed by EPTL 3-2.1, and the formalities are strict.
A will must meet these requirements:
- At least two attesting witnesses must witness the signing.
- Both witnesses must sign within one 30-day period (the law applies a rebuttable presumption that the 30-day requirement was met).
- The testator must sign at the end of the will — or another person may sign in the testator’s presence and at their direction.
- The testator must declare the instrument to be their will (this is called publication).
- The testator must sign in the witnesses’ presence or acknowledge the signature to each witness; the witnesses sign at the testator’s request and add their residence addresses.
A disinheritance clause is only as strong as the execution ceremony behind it. Our Will Execution and NY Will Requirements pages walk through these formalities in detail, and our attorneys supervise execution so the document cannot be attacked on technical grounds.
Remember, too, that a will takes effect only at death and must be admitted to probate in the Surrogate’s Court. A living will — a health-care and end-of-life directive — is an entirely separate document and does not distribute property; do not confuse the two. See our Living Will page for that distinct planning need.
The Breadth of Documents We Prepare
Effectively disinheriting an heir — and protecting the people you do want to provide for — usually requires more than a single will clause. As a full-service drafting practice, Morgan Legal Group prepares the complete suite of instruments that work together to carry out your wishes:
- Last Wills and Testaments — the cornerstone of any plan, with clear, deliberate disinheritance language where appropriate. Start at our Will Drafting Overview.
- Codicils and Amendments — to update a will when circumstances change without rewriting it from scratch. See Codicils & Amendments.
- Trusts — to direct assets outside the probate estate, manage how and when beneficiaries receive property, and address elective-share and testamentary-substitute planning.
- Prenuptial and postnuptial agreements — the lawful path to waiving a spouse’s right of election in advance.
- Health-care directives and living wills — for medical and end-of-life decisions, kept distinct from your property will.
- Beneficiary-designation coordination — so accounts and policies align with, rather than contradict, your will.
The advantage of having one firm draft these documents together is consistency. When your will, trusts, and agreements are prepared in isolation, they can conflict — and conflicts are exactly what disappointed heirs exploit in court. A coordinated plan closes those gaps.
FAQ
Can I disinherit my children in New York?
Yes. New York does not give children a protected share of your estate through your will. If you want to leave a child out, your will should state that intention clearly and deliberately to reduce the risk of a challenge.
Can I completely disinherit my spouse?
Generally no. Under EPTL 5-1.1-A, a surviving spouse can elect to take a statutory minimum share regardless of your will, unless they validly waived that right (for example, in a prenuptial or postnuptial agreement) or forfeited it under the statute.
What happens if I die without a will in New York?
You cannot disinherit anyone. Intestacy rules under EPTL Article 4 distribute your property to your next of kin in fixed shares, with your spouse and children inheriting first.
Does a “no-contest” clause stop a spouse’s right of election?
No. A surviving spouse’s right of election under EPTL 5-1.1-A is a statutory right and is not defeated by a will’s in-terrorem (no-contest) clause. Disinheriting or limiting a spouse requires proper waiver or planning, not just clause language.
Talk to a New York Estate Planning Attorney
Disinheritance done wrong invites litigation; done right, it quietly carries out your wishes. Whether you need to lawfully limit a spouse’s share, deliberately disinherit a relative, or simply make sure your will survives probate, Morgan Legal Group and Russel Morgan, Esq. can draft the full set of documents your plan requires.
Schedule your 30-minute consultation with Russel Morgan, Esq.
This article is general information about New York law, not legal advice. Consult a licensed New York attorney about your specific situation.
Further reading from Morgan Legal Group: why estate planning is so important.