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Wills Part VIII: Disinheriting and the Pretermitted Heir

Family relations are not always congenial. Because of this, there will be times that a testator will want to write a person out of his will. The intentional exclusion of a person from a will is called disinheriting. Disinheriting a person in a will excludes them from receiving any portion of the testator’s estate. Disinheritance can often lead to a will contest by the disinherited party. For more information regarding this please refer to Part VII of this series, entitled “Will Challenges.”

Whether intentionally excluded or merely forgotten about, a person who is not named as a beneficiary under a will, but would have received through intestacy, is called a pretermitted heir. In most cases, this pretermitted heir will either be a child or a spouse. Under Massachusetts law, a spouse who is intentionally disinherited in a will may choose to receive the elective share. The elective share is a portion of the estate which is calculated based on the overall size of the testator’s estate. This elective share is calculated and then given to the spouse prior to the distribution of the rest of the estate established by the will.

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