Can You Disinherit a Child in New York? Will Rules

Yes. A New York parent can leave a child out of a will. The right of election in the Estates, Powers and Trusts Law belongs to the surviving spouse, and the statute that creates it does not extend a comparable right to children. A child can still end up with part of an estate through gaps in the will: property it does not dispose of, and children born after it was signed. Both are drafting problems.

Does New York give children a forced share of a parent's estate?

No statute we reviewed for this article gives a child a forced share like the one New York gives a spouse. The right to override a will is granted in EPTL § 5-1.1-A, and that section gives it to one person: the surviving spouse.

The statute also says that "[t]he right of election is personal to the surviving spouse", with listed exceptions that allow a guardian, committee, conservator, guardian ad litem or Article 81 guardian to elect on the spouse's behalf when a court authorizes it. Children are not on that list.

A spouse who is left out of a will, or left less than the elective share, can file an election. Apart from the intestacy and after-born situations discussed below, a child who is left out of a will generally has to attack the will itself, through objections in Surrogate's Court, to receive anything.

How much can a surviving spouse claim compared with a child?

As of October 2026, the spouse's elective share under EPTL § 5-1.1-A(a)(2) is the greater of $50,000 (or the entire net estate if it is worth less than $50,000) or one third of the net estate. Debts, administration expenses and reasonable funeral expenses are deducted when the net estate is computed.

The spouse's election also reaches beyond the probate estate. Section 5-1.1-A(b)(1) treats certain lifetime arrangements as "testamentary substitutes", including joint accounts with survivorship, payable-on-death accounts, dispositions the decedent kept a power to revoke, and retirement plan benefits (for certain plans, "only to the extent of fifty percent of the capital value thereof"). A parent who wants to leave a child nothing does not face an equivalent rule: there is no child's election that pulls those assets back into the estate.

The deadline for a spouse is strict. An election "must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be, but in no event later than two years after the date of decedent's death, except as otherwise provided in subparagraph 2 of this paragraph." We cover the full procedure in our guide to the spousal right of election in New York.

Can a disinherited child still inherit through intestacy?

Yes, if the will leaves property undisposed of. EPTL § 4-1.1 governs "[t]he property of a decedent not disposed of by will", and it sends that property to the decedent's family in a fixed order.

Under § 4-1.1(a)(3), when a decedent is survived by "[i]ssue and no spouse", the property goes "the whole to the issue, by representation." Under § 4-1.1(a)(1), when there is a spouse and issue, as of October 2026 the spouse takes "fifty thousand dollars and one-half of the residue" and the balance goes to the issue by representation.

This is how disinheritance fails in practice. A will that leaves specific items to named people but has no residuary clause, or a residuary gift to a beneficiary who dies first with no alternate named, can leave part of the estate passing by intestacy. The child the parent meant to exclude is then a distributee of that undisposed property. Our article on dying without a will in New York walks through the intestacy order in detail.

The fix is a complete residuary clause with at least one alternate beneficiary.

What happens to a child born after the will was signed?

A child born after the will was executed may take a share of the estate under EPTL § 5-3.2, but only if the child is unprovided for by any settlement and is neither provided for nor in any way mentioned in the will.

The share the after-born child receives depends on whether the parent had other children when the will was signed:

• Children living at signing, none provided for. Under § 5-3.2(a)(1)(A), if "[n]o provision is made therein for any such child, an after-born child is not entitled to share in the testator's estate."
• Children living at signing, some provided for. Under § 5-3.2(a)(1)(B), the after-born child shares only in "the disposition made to children under the will", receiving what he or she would have received had the testator "included all after-born children with the children upon whom benefits were conferred under the will, and given an equal share of the estate to each such child."
• A gift limited to living children only. If the will shows the parent intended "a limited provision which specifically applied only to the testator's children living at the time the will was executed", the after-born child takes the share that "would have passed to such child had the testator died intestate."
• No children living at signing. Under § 5-3.2(a)(2), the after-born child "succeeds to the portion of such testator's estate as would have passed to such child had the testator died intestate."

The statute defines "after-born child" to include a child "in gestation at the time of the testator's death and born thereafter." It also provides that a non-marital child born after the will is "considered an after-born child of his or her father where paternity is established pursuant to section 4-1.2 of this chapter."

Where the after-born child's share comes from matters to everyone else in the will. Under § 5-3.2(c), the child recovers ratably from the other children's shares (in the (a)(1)(B) situation) or from the testamentary beneficiaries (in the (a)(2) situation), and "the character of the testamentary plan adopted by the testator shall be preserved to the maximum extent possible."

How to keep § 5-3.2 from rewriting your plan

Section 5-3.2 applies only to an after-born child who is "neither provided for nor in any way mentioned in the will". A will that addresses future children by class, either including them or expressly excluding them, takes the child outside the statute. Signing a new will after a birth or adoption does the same thing.

How do you disinherit a child clearly in a New York will?

State it in the will, by name, and make sure the rest of the document leaves no gap. A will that excludes a child should have these features:

1. The child is named. A sentence identifying the child and stating that the omission is intentional answers the argument that the parent forgot the child existed.
2. Future children are addressed. The will says whether children born or adopted later are included or excluded, which matters under EPTL § 5-3.2.
3. The residuary clause is complete. Every asset not specifically given has a primary and alternate beneficiary, so nothing falls into intestacy under EPTL § 4-1.1.
4. Beneficiary designations are reviewed with the will. Check life insurance, retirement account and payable-on-death designations at the same time, so an excluded child is not still named on one of them.
5. The execution is clean. Proper formalities and available witnesses make a due-execution challenge harder.

Can a disinherited child contest the will?

Yes, if the child's interest would be hurt by the will being admitted to probate. Under SCPA 1410, "[a]ny person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof". A child who would take as a distributee under EPTL § 4-1.1 if the will failed is usually in that position. Objections are filed in the Surrogate's Court where the will is offered for probate, such as the New York County Surrogate's Court, and SCPA 1410 requires them to be filed "on or before the return day of the process or on such subsequent day as directed by the court", or within 10 days after completion of an SCPA 1404 examination if one is requested. Our guide to contesting a will in New York covers the grounds and the process, and our article on undue influence in New York wills covers one of the grounds excluded children raise.

A no-contest (in terrorem) clause can discourage a challenge, but only for a beneficiary who has something to lose. EPTL § 3-3.5(b) enforces such a clause against a beneficiary who contests.

The clause works by taking away a disposition. A child who receives nothing under the will has no disposition to forfeit, so the clause gives that child no reason to stay out of court. That is why some parents leave an excluded child a gift large enough to matter, conditioned on not contesting.

Section 3-3.5 also lists conduct that never triggers forfeiture, including a contest based on probable cause claiming forgery or revocation by a later will, a refusal to sign a waiver of notice, and the preliminary examination under SCPA 1404 of "a proponent's witnesses, the person who prepared the will, the nominated executors and the proponents in a probate proceeding".

Why does clear drafting matter so much here?

Because a child's challenge is aimed at the document. A will that names the excluded child, addresses after-born children, disposes of the entire residue and was properly executed gives a Surrogate's Court little to work with. A silent, incomplete or outdated will invites the arguments described above, and the cost of that litigation comes out of the estate.

Review the will after any birth, adoption, marriage or divorce, and check beneficiary designations at the same time.

Talk to us about your will

If you are planning to leave a child out of your will, or were left out of a parent's will, Estate Law New York can review the documents and explain where you stand. Managing Attorney Alan Vaitzman, Esq. meets clients at our office on the 17th Floor, 299 Broadway, New York, NY 10007. Schedule a free consultation.

Frequently Asked Questions

Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.