Does Oklahoma law allow you to cut family members out of your Will? The answer is that it depends on their relationship to you.
Your Spouse
Can you, by Will, make sure that you wife or husband gets no part of your estate?
The short answer is no!
In Oklahoma, if you are married when you die, your surviving spouse can either (1) take what you leave to her or him under your Will or a Trust, or (2) “elect against the Will” (which includes a trust).
In the case that a spouse “elects against the Will,” that person is then entitled to 1/2 of the property acquired by the joint industry of the husband and wife during their marriage. Basically, all property acquired during your marriage is joint industry property except (1) that covered by a valid pre-nuptial agreement, and (2) property acquired by gift or inheritance during marriage, which is taken in your name only and is not co-mingled with any other joint industry property. In other words, you can’t cut out your spouse.
Your Children (or Grandchildren)
Can you, by Will, make sure that one or more of your children (or grandchildren) get no part of your estate?
The short answer is yes!
In most cases, you have no legal obligations to leave anything to your descendants, although most people do.
However, it's important to be aware that there are statutory restrictions on these actions to protect "pretermitted (forgotten) heirs."
If a Testator—that is, the person who has made a will—wants to omit any of his children (or their children if the Testator's child dies before the Testator), it must be done intentionally. If a court does not find an intent to omit a child, the child can petition the court to receive the amount of the estate that he would have received if the Testator died without a will, or “intestate.”
How do you show your intent to disinherit a child or his issue?
Rogers v. Pratt, decided by the Oklahoma supreme court on May 5, 2020, lists the possibilities. They are: (1) expressly state in the will that the named child receives nothing; (2) if that doesn't appeal to you, provide only a nominal amount for a named descendant; (3) name a child but leave him nothing; (4) declare that any person who claims to be pretermitted takes nothing; and (5) name all your lineal family members and state that it is your intention that they take nothing and state that any person not expressly mentioned by name or class is intentionally omitted. Naming a child in a separate trust is NOT sufficient for this purpose, but put the same language (no. 5 above), into the trust. This shows your express intention to exclude a lineal descendant.
If you have more questions and would like help getting your estate in order, please contact me, and I'll be glad to assist you.
Grayson P. Van Horn is an attorney at law serving Oklahoma residents and property owners.
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