Definition
The deliberate act by which a property owner cuts off a person — typically one who would otherwise be a natural heir — from inheriting under the owner's estate. Disinheritance may occur expressly, through a clause in a will that explicitly excludes a named individual, or effectively, by disposing of the entire estate to others so that nothing remains for the excluded person to inherit.
Two points are central to understanding the term. First, disinheritance is not self-executing: a testator cannot disinherit an heir simply by naming them in a will and stating an intention to exclude them. Under the prevailing common law rule, mere words of exclusion are insufficient. The entire estate must be affirmatively devised or bequeathed to someone else, leaving nothing for the would-be heir to claim. Second, disinheritance presupposes a right that is being cut off. A person who was never entitled to inherit in the first place — for instance, a friend or a distant acquaintance — cannot be "disinherited." The concept applies specifically to those with a recognized expectancy: a spouse, child, or other heir apparent.
Common Language
Modern common usage (Wiktionary): The act of disinheriting.
Historical common usage (Webster's 1913): The act of disinheriting, or the condition of being disinherited; disherison.
The lay understanding of disinheritance tracks the legal meaning closely in outcome — being "cut out" of a will — but misses the critical legal mechanism. Ordinary usage implies that a testator can disinherit someone simply by saying so. Legal doctrine requires affirmative disposition of the estate; a bare declaration of exclusion, without a complete testamentary scheme giving property elsewhere, may be legally ineffective.
Common Confusion
Disinheritance is sometimes confused with intestate exclusion — the situation where a person simply fails to make a will and a relative receives nothing because the intestacy statute does not reach them. True disinheritance requires an affirmative testamentary act. Failing to include someone in a will is not the same as disinheriting them; in some jurisdictions, an omitted heir (particularly a child born after execution of the will) may assert a claim precisely because they were not formally disinherited.
Disinheritance should also be distinguished from pretermission. A pretermitted heir is one who was accidentally omitted from a will, and many jurisdictions provide statutory protection for such heirs. Disinheritance, by contrast, is intentional. The distinction has procedural and evidentiary consequences when a will is contested.
Why It Matters in Research
The effectiveness of disinheritance varies dramatically depending on the jurisdiction and the era. At common law, the freedom to disinherit was nearly absolute for real property held in fee simple — a testator could leave everything to a stranger. That freedom was always qualified with respect to spouses: dower and curtesy rights historically limited a surviving spouse's disinheritance regardless of testamentary language. Modern forced heirship and elective share statutes further erode the common law freedom, particularly for spouses and, in a minority of jurisdictions influenced by civil law traditions (notably Louisiana), for children.
Researchers working in historical sources should note that the term "disherison" appears frequently in older English and American materials as a near-synonym, and entries under that heading may contain doctrine not repeated under disinheritance. The two terms are functionally equivalent in most historical sources, but disherison carries stronger feudal overtones and appears more often in real property contexts.
For estate planning research in the modern corpus, look also at no-contest clauses (in terrorem clauses), which are a related but distinct mechanism: rather than disinheriting outright, they condition inheritance on a beneficiary not challenging the will. The interaction between express disinheritance clauses and in terrorem clauses is a frequent source of litigation and annotation.
Jurisdictional variation in the corpus is significant. Civil law jurisdictions — and states like Louisiana that retain civil law elements — impose forced heirship rules that render certain disinheritances void unless specific statutory grounds are met. Research sourced from Louisiana materials, or from comparative law treatments, will use disinheritance in a more technically restricted sense, often referencing specific statutory causes that must be pleaded and proved.
Historical Dictionary Support
Black's Law Dictionary (both editions) and Bouvier's Law Dictionary converge on the core definition: disinheritance is the act by which an estate owner deprives a would-be heir of inheritance rights. All three sources treat it as an affirmative act rather than a passive omission.
Bouvier adds the most substantively useful gloss, making explicit what the Black's entries leave implicit: an heir cannot be disinherited by mere words of exclusion; the testator must give the entire estate to someone else by express words or by necessary implication. Bouvier cites Cooper's Justinian and 7 East 106 in support — grounding the rule in both Roman-law influence and English common law authority. This passage is important for corpus researchers because it identifies the operative legal requirement that modern popular usage routinely ignores.
None of the three historical sources address the spousal elective share or modern forced heirship statutes, which are products of legislative reform largely postdating the editions in question. Researchers should treat the historical entries as accurate for the common law baseline but incomplete for any modern jurisdiction with a Uniform Probate Code-derived statute or a civil law overlay.
Jurisdictional Note
In Louisiana, disinheritance of a forced heir (a child under twenty-four or a permanently incapacitated child) is void unless one of the statutory causes enumerated in the Civil Code is established. This is a fundamental departure from the common law rule. In most other U.S. jurisdictions, disinheritance of children is freely permitted, though spousal disinheritance remains constrained by elective share statutes derived from the Uniform Probate Code or equivalent state legislation.
Encyclopedia Cross-Reference
Law Mind Encyclopedia — Wills and Testamentary Succession
Law Mind Encyclopedia — Forced Heirship and the Elective Share
Law Mind Encyclopedia — Pretermitted Heirs