Can a family member legally be excluded?


Dear Mr. Premack: About 30 years ago, my childless aunt and uncle decided they did not want to have a relationship with me anymore. My husband and I never understood their reasons, and though I tried to reconcile several times my efforts were always rejected. When my uncle died a few years ago, I was not listed in his obituary or Will as part of the family even though my mother and brothers were included. Now my aunt has died, and again I am not listed as part of the family. I saw a copy of her probated Will and it says that while my brothers do inherit, I am not to get any part of her estate. I would not enjoy the conflict and I do not intend to make waves. But I’d like to know whether the part of the Will leaving me out is legal or if I am entitled to any part of the estate. – A.E.

There are two components to your family situation. The first is emotional and the second is legal.


Rejection from your aunt and uncle could have brought years of emotional and social discord in your family. Hopefully, you had some support from your parents and brothers who could have acted as intermediaries to help your efforts to reconcile. On the other hand, they may have felt that any action contradicting your aunt and uncle would result in their own rejection. Everyone has their own behavioral justifications, and this is not a psychology column.


On to the legal side of this situation. You said both your uncle (who died first) and your aunt had Wills. No doubt that when he died all of the assets went to her as surviving spouse. Now that she has died, her Will includes your brothers but not you. Since you say her Will was probated, the court must have ruled that it met the legal definition of a valid Will – that is, at a minimum it expressed her intention for distributing her assets, it was signed and dated by her, and (if it was not in her own handwriting) it was signed by at least two witnesses.


Her Will also specifically stated that you are not to receive any portion of her estate. You want to know if a) that type of Will provision is legal, and b) you are entitled to something despite the Will provision.


Yes, it is entirely legal for a Will to exclude one or more individuals. Under section 251.002 of the Texas Estates Code, a person in their Will may disinherit any heir and may direct the disposition of property passing under the Will or by intestacy. That means that any heir, including you, can be legally excluded. It also means that a Will can instruct that any heir can be excluded even for assets that are not listed in the Will (that is, would pass according to state law because the Will forgot to include instructions).


Take this one step farther. What if your aunt had died without a Will? State law would pass the assets first to a surviving spouse, then to the children, then to the parents, then to the siblings, then to the nieces and nephews. Your aunt no longer had a spouse, had no children, and her parents are likely long deceased. So, if she had died without a Will her assets would have passed to her siblings. Under the intestacy law, you would still not have any right to inherit so long as your parent (her sibling) was still alive.


Even though you don’t desire to make waves or have a conflict, the law supports your aunt leaving you out of the family.

Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington.