You cannot fully disinherit a spouse in most states, minor children have no automatic right to inherit directly, and roughly two-thirds of American adults still have no will at all. These lesser-known rules can catch people off guard when they finally sit down to plan an estate.
Estate planning has a lot of folk wisdom attached to it, some accurate, some not. Below are several rules about wills that surprise most people the first time they hear them, along with why the law works this way. When you are ready to put your own plan in place correctly, FastWill's will package applies these rules automatically for your state.
You Cannot Fully Disinherit a Spouse
A will can do a lot, but completely cutting out a spouse is generally not one of them. State laws vary on the exact protected share, but many states guarantee a surviving spouse a minimum portion of the estate regardless of what the will says. In New York, for example, a surviving spouse can elect to receive the greater of 50,000 dollars or one third of the net estate under EPTL 5-1.1-A, even if the will tries to leave them nothing. Lawmakers built this protection in so a disinherited spouse is not left destitute out of spite. If you want to limit a spouse's inheritance for legitimate reasons, that generally requires a contract, such as a prenuptial or postnuptial agreement, not just a will provision.
Minor Children Do Not Automatically Inherit Directly
We talk often about protecting children through a will, but minor children cannot legally take direct possession of an inheritance, since they generally cannot enter into contracts until age 18. Instead, you name an adult to manage a child's inheritance until they reach majority, either informally or through a trust. Many states also have protections for children born after a will is signed or children who were not known to the parent at the time, so an "after-born" child is not automatically excluded just because they were not named.
A Child's Inheritance Can Actually Strain a Surviving Spouse
In states where minor children automatically inherit a share of the estate, a court-appointed guardian, not necessarily the surviving spouse, manages that portion, and it typically cannot be used for the spouse's own living expenses. This can leave a surviving spouse in a tighter financial position than most people assume, even though the family's total assets have not changed. A life insurance policy naming the spouse directly as beneficiary is one common way to work around this issue, since insurance proceeds pass outside the will entirely.
Some Professionals Cannot Pass Down Their Business Through a Will
If you run a licensed practice, such as a law firm or medical office, you generally cannot leave that business to an heir who does not hold the required license. Practicing a licensed profession without the proper credential is not legal, so the business itself has little transferable value at death unless a licensed successor is already in place. If preserving a professional practice matters to you, that requires planning well before death, such as selling the practice during your lifetime or arranging a buy-in with a chosen successor.
An Inheritance Is Not Always Fully Protected in a Divorce
Many people assume an inheritance is automatically kept separate from marital property. In reality, if inherited funds are commingled into a joint account or used for shared expenses, some states will treat that money as a shared marital asset in a later divorce. Keeping an inheritance in a separate, individually titled account, or placing it in trust, is a common way to preserve its separate status.
You Probably Do Not Need a Lawyer to Make a Valid Will
Estimates vary, but most surveys find that only around a third of American adults have a last will and testament in place, and the share is still surprisingly low even among adults over 65. Cost and intimidation around finding an attorney are common reasons people put it off. In reality, a straightforward will can be created without an attorney: create an account, choose an executor, name your beneficiaries, list your debts, and sign the document following your state's execution rules. Our roundup of the most common will mistakes covers the specific errors to watch for once you start.
How FastWill Handles These Surprises
FastWill's platform is built around exactly these state-specific quirks, applying spousal share rules, guardianship-of-estate provisions for minor children, and your state's specific execution requirements automatically, so you do not have to learn probate law before you can protect your family. For a deeper glossary of the terms used throughout estate planning, see our guide to estate planning terms everyone should know.
Frequently Asked Questions
Can I completely disinherit my spouse in my will?
Generally no. Most states guarantee a surviving spouse a minimum share of the estate regardless of the will's terms, though the exact amount varies by state.
Do my minor children automatically get their inheritance directly?
No. Minor children cannot legally manage an inheritance themselves. An adult must be named to manage those assets, usually until the child turns 18.
What happens to a licensed professional practice when the owner dies without a plan?
In most cases, the business cannot be transferred to an heir who is not licensed in that profession, which can leave the practice with little value unless a successor was arranged in advance.
Is an inheritance automatically protected in a divorce?
Not always. If inherited funds are mixed with marital assets, some states may treat them as shared property in a divorce, so keeping the funds separate matters.
Do most Americans actually have a will?
No. Most estimates suggest only about a third of American adults have a will, which means the majority are leaving these decisions to state default law.
Do Not Let These Surprises Catch Your Family Off Guard
The rules governing wills are more specific than most people assume, and getting them wrong can undo your intentions. Start your will with FastWill and build a plan that actually accounts for how the law works.
