Disinheriting Heirs & No-Contest Clauses

A client sits across my desk and asks: "Can I cut my daughter out of my will?" The answer surprises many people: yes, you can. Pennsylvania has no forced heirship rule. You can disinherit virtually anyone, with one major exception. But the how and when matter tremendously, and there are serious pitfalls to avoid.

The General Rule: No Forced Heirship

Pennsylvania does not have forced heirship laws that give children or other relatives an automatic right to inherit. You have the freedom, subject to the exception noted below, to leave your estate to whomever you choose and to exclude whomever you wish. This is a fundamental principle of testamentary freedom. See 20 Pa.C.S. § 2501 (who may make a will). A will that disinherits everyone except a pet charity is perfectly valid. A will that provides $1 to each of your three children and $1 million to your favorite cause is also valid, again, subject to the crucial exception that follows.

The Major Exception: Your Spouse

The one person you truly cannot disinherit is your surviving spouse, and even that rule has the narrow exceptions described below. Under 20 Pa.C.S. § 2203 , a surviving spouse generally has the right to elect against the will and take one-third of certain property (the elective share) , regardless of what the will says. It does not matter if your will explicitly states "I leave nothing to my spouse." They can elect to take the one-third share anyway. The usual way to plan around this is a valid prenuptial or postnuptial agreement waiving the elective share under § 2207. Will language alone cannot override it. A waiver is not limited to a marital agreement. Section 2207 allows the right of election to be waived wholly or partially, before or after marriage or before or after the death of the decedent. The Code also cuts the election off in two situations that have nothing to do with drafting. Under § 2208, a spouse who would forfeit an intestate share under § 2106(a) has no right of election at all. Section 2106(a) reaches two separate grounds. The first is a spouse who for a year or more willfully neglected or refused the duty of support, or who for a year or more willfully and maliciously deserted the decedent. The second is a spouse whose husband or wife dies domiciled in Pennsylvania during divorce proceedings where no decree of divorce has been entered under 23 Pa.C.S. § 3323 and grounds have been established under 23 Pa.C.S. § 3323(g). Section 2203(c) cuts off the elective share in that same divorce situation directly, so the divorce cutoff runs through two provisions rather than one.

The Secondary Exception: Pretermitted Children

The other person you need to plan around is a child born or adopted after the will was executed who is not mentioned in it. This is a pretermitted child , and it is governed by 20 Pa.C.S. § 2507(4) . Unlike the spousal elective share, this one can be defeated with proper will language. The statute says:

If the testator fails to provide in his will for his child born or adopted after making his will, unless it appears from the will that the failure was intentional, such child shall receive out of the testator's property not passing to a surviving spouse , such share as he would have received if the testator had died unmarried and intestate owning only that portion of his estate not passing to a surviving spouse.

The consequence is significant: a pretermitted child can claim an intestate share of your estate, which could be one-half or more, depending on what other heirs survive. This is automatic, the child does not have to sue; it happens by operation of law unless the will explicitly demonstrates intentional omission .

How to Structure Intentional Disinheritance

To avoid the pretermitted child trap, your will or codicil must make clear that any omission was deliberate . Here are the best practices:

1. Explicit Language

Include a specific provision that addresses the possibility of afterborn children. For example:

"I make no provision herein for any child born to me after the execution of this will, whether by my current or future relationships, and I intend for any such child to receive nothing from my estate."

This language creates a clear record that you knew about the possibility of afterborn children and that you intentionally excluded them. A vague general clause like "I leave nothing to anyone not named herein" is a weaker position, since the statute's test is whether the will shows the omission was intentional, and language that never mentions the possibility of an afterborn child gives a pretermitted child room to argue it does not.

2. Reference Specific Persons

If you are disinheriting a named individual (not an afterborn child, but someone alive at the time the will is signed), it is even more important to be explicit. For example:

"I intentionally make no provision for my son John and my daughter Mary. It is my express intention that they receive nothing from my estate, and any provision contrary to this is void."

Naming them is not required, but it removes all doubt. If you say nothing about a child in your will, and that child claims you forgot, litigation can ensue. A court will weigh whether you really intended disinheritance or simply overlooked them.

3. State the Reason Briefly

You are not required to explain your motives, but doing so strengthens enforceability. For example:

"I intentionally exclude my daughter Sarah from my will because I have already made substantial gifts to her during my lifetime and wish for my estate to benefit my other children and grandchildren."

This shows you had a clear reason and were not simply neglectful. It reduces the risk that a disinherited party will claim the will was made under duress or that you lacked capacity.

No-Contest Clauses (In Terrorem Clauses)

A no-contest clause (also called an in terrorem clause ) is a provision that penalizes anyone who challenges the will. A typical formulation is:

"If any beneficiary named herein contests this will or its validity, such person shall receive nothing from my estate, and all bequests to them are void."

Pennsylvania enforces in terrorem clauses , but with an important limit. A no-contest clause will not bar a challenge that is brought with "probable cause", meaning a reasonable, good-faith basis for believing the will is invalid. See 20 Pa.C.S. § 2521 . This means a no-contest clause cannot serve as a complete shield against litigation. If someone has legitimate evidence that you lacked capacity, were subject to undue influence, or that the will was improperly executed, they can challenge it despite the clause, though the no-contest clause does discourage frivolous suits.

The Spousal Elective Share in Practice

The elective share under § 2203 applies to more than just probate assets. It reaches property passing by will or intestacy and certain inter vivos transfers (retained-interest conveyances, revocable or consumable transfers, certain survivorship property and annuities, and gifts within one year over $3,000 per donee). Property passing by a power of appointment given to the decedent by someone else is excluded under § 2203(b)(4). The spouse chooses whichever is larger, the will provision or the one-third elective share. This is not technically "forced heirship" because the spouse must affirmatively elect, but the practical effect is the same: absent a valid waiver under § 2207, or a forfeiture under §§ 2106(a) and 2208, you cannot cut a spouse below one-third. See § 2207 (waiver of right to elect). If estate planning around a spouse is a priority, the conversation starts with a marital agreement, not a will clause.

Drafting Best Practices

Here is a summary of what sound drafting practice (and I) recommend:

• Use explicit, unambiguous language. Do not rely on vague wording or silence. Say clearly that you are disinheriting someone and why.
• Name the person or class you are excluding. Spell out "my children," "any child born after this will," "my sister Jennifer," etc.
• Consider a nominal bequest. Some practitioners recommend leaving the disinherited party $1 or a specific item. This shows they were not forgotten, and it can strengthen your argument that the disinheritance was intentional. (This is optional and sometimes undesirable if you fear litigation.)
• Review the will before execution. Make sure you are fully aware of what you are signing and that it reflects your true wishes.
• Update after major life events. If you have a child after executing your will, execute a new will or codicil that addresses them, even if your intent is to exclude them.
• Consider a living will or powers of attorney. These are separate from your will and may not require the same specificity on disinheritance. Consult your attorney on how to integrate these documents.

Will Contests and Litigation Risks

Even with the best-drafted disinheritance clause, litigation is always a risk. Disinherited heirs may claim lack of capacity, undue influence, fraud, or improper execution. A challenge will focus on whether you understood what you were signing, whether anyone pressured or medicated you into it, and whether the will was properly witnessed and executed. A strong attestation, having the will properly witnessed and signed before a notary, helps, as does a clear memory of your intentions and mental state at the time. Some clients work with their attorney to prepare a contemporaneous letter or memorandum explaining the reasons for disinheritance, to be found with the will. This creates a written record that can be powerful evidence in any later dispute.

Legal and factual content on this page was last verified: Sep. 2026. If you are reading this significantly after that date, confirm key provisions with current statute text or contact our office.