If a child is left out of a will, they can contest it, but a bruised relationship isn’t enough on its own. A successful challenge requires legal standing — usually meaning you’d inherit if the will were thrown out — and at least one recognized ground, such as the parent lacking mental capacity when they signed or someone else exerting undue influence over them. And in many states, a child who was left out by apparent oversight doesn’t need to contest at all: a pretermitted heir statute may grant a share automatically.
When You Don’t Have to Fight for a Share
Start here, because it’s the easiest path and people miss it. Most states have pretermitted heir statutes that protect children who were unintentionally left out of a will. The classic case is a child born or adopted after the will was signed — the law assumes the parent would have included that child if they’d had the chance, so it steps in and gives the child a share without any contest.
The share usually matches what the child would have received under state intestacy rules. If the parent had other children who were named in the will, the omitted child’s portion typically comes out of the siblings’ shares rather than the whole estate.
This protection has limits. If the will shows the omission was deliberate — language like “I have intentionally made no provision for any children born after this will” — the statute won’t help. Neither will it apply if the parent provided for the child outside the will through a trust or other transfer. A few states extend pretermitted heir protection to all omitted children, not just those born after the will was signed, but most stick with the narrower rule.
Do You Have Standing to Contest
Before a court will hear your challenge, you have to show “standing” — a direct financial stake in the outcome. For a child, that usually means proving you would inherit under your state’s intestacy laws if the will were invalidated. Since every state’s intestacy scheme places children near the top of the inheritance ladder, biological and legally adopted children almost always qualify.
A child who was named in an earlier version of the will but cut from a later version also has standing. That earlier inclusion creates a recognizable interest, and the change between drafts is often the heart of the eventual case.
Stepchildren who were never legally adopted face a much harder path. In most states, unadopted stepchildren aren’t recognized as heirs under intestacy statutes, which means they lack the financial stake courts require. A handful of states carve out narrow exceptions — for example, when the stepparent-child relationship began in childhood and there’s clear and convincing evidence the stepparent intended to adopt but was blocked by a legal barrier. These exceptions are rare. A stepchild thinking about a contest should talk to a probate attorney before spending money chasing one.
Grounds That Can Actually Win
Standing gets you into the courtroom. Winning requires proving something was fundamentally wrong with how the will was made. Four categories of defect are recognized.
Lack of Mental Capacity
This is the ground raised most often. At the moment of signing, the parent had to understand the nature and extent of their property, know who their close family members were, grasp what the will would do with those assets, and connect it all into a coherent plan.
The bar is lower than most people assume. Someone with early-stage dementia, occasional memory lapses, or a need for daily help can still have testamentary capacity. The question is what they understood when they signed. Medical records from near the date of execution carry the most weight, along with testimony from the witnesses in the room. A dementia or Alzheimer’s diagnosis doesn’t automatically prove incapacity, but it draws the court’s attention and changes the dynamic of the case.
Undue Influence
Undue influence means someone close to the parent overpowered their free will, so the document reflects the influencer’s wishes rather than the parent’s. Proving it generally requires three things: a confidential or trust-based relationship between the influencer and the parent, the influencer’s active involvement in preparing or executing the will, and a benefit flowing to the influencer that wouldn’t be expected under normal circumstances.
In most states, once the challenger establishes that confidential relationship and shows the beneficiary was involved in creating the will, a presumption of undue influence arises and the beneficiary has to come forward with evidence that the will genuinely reflected the parent’s own wishes. Common fact patterns include a caregiver who cut the parent off from other family members, a new romantic partner who went along to the attorney’s office, or an adult child who picked the lawyer and gave the instructions. Isolation from family is one of the strongest indicators courts look for.
Fraud or Forgery
Fraud covers deception that shaped the parent’s choices. A classic example is telling a parent that another child has died or abandoned them, prompting the parent to cut that child out. The lie doesn’t have to be about the will itself — it just has to be the reason behind what the will says.
Forgery is simpler. If someone faked the parent’s signature or submitted a document the parent never signed, the will is void. Handwriting analysis and testimony from the purported witnesses usually resolve these cases.
Improper Execution
Every state has formal requirements for a valid will: the testator’s signature, two witnesses who also sign, and in some states, notarization. Skip a required step — only initialing instead of signing, a witness who wasn’t actually present, only one signature where two are required — and the will may fail. Execution challenges tend to be cleaner than capacity or influence claims, because they don’t require getting into the parent’s state of mind. Either the formalities were followed or they weren’t.
The Risk of a No-Contest Clause
Some wills include a no-contest clause (also called an “in terrorem” clause) that threatens to disinherit any beneficiary who challenges the will. If the will leaves you $50,000 and you contest, the clause tries to take that $50,000 away. It’s a calculated gamble on whether the upside of winning is worth the loss if you lose.
Enforcement varies. The most widely followed exception is a “good faith with probable cause” standard — if the contest rests on genuine, reasonable grounds rather than spite, the clause won’t be enforced even if the contest fails. The Restatement (Third) of Property endorses this approach. A few states refuse to enforce no-contest clauses at all.
Two points people miss. First, a no-contest clause only matters if the will actually gives you something. A child who was completely disinherited has nothing to lose by contesting, because there’s no bequest for the clause to revoke. Second, if the contest succeeds and the will falls, the clause falls with it. The clause only has teeth when the challenge fails and the will stands.
What a Will Contest Cannot Reach
Winning a will contest doesn’t give you access to everything your parent owned. A contest only affects “probate assets” — property that passes through the will and the probate court. A large and growing share of most people’s wealth passes outside probate entirely.
Life insurance payouts, retirement accounts like 401(k)s and IRAs, payable-on-death bank accounts, and jointly held property with survivorship rights all go directly to named beneficiaries regardless of what the will says. Overturning the will does nothing to them. If a parent changed the beneficiary on a life insurance policy or retirement account under suspicious circumstances, challenging that designation requires a separate legal action, with similar grounds available (undue influence, lack of capacity, fraud) but entirely different procedures.
Trusts work the same way. Property held in a revocable living trust doesn’t pass through the will and isn’t touched by a will contest. Challenging a trust is its own proceeding, often with different rules and deadlines. Before pursuing any contest, look at the full picture of what your parent owned and how each asset was titled.
How Quickly You Have to Act
This is where many potential contests die. Every state imposes a deadline for challenging a will after it’s admitted to probate, and missing that deadline almost always means losing the right to contest permanently. The window varies widely, from a few months in some states to several years in others. The clock typically starts when the will is filed with the probate court or when you receive formal notice of the probate proceeding — not from the date of death.
The practical message is simple. If you suspect a will should be challenged, call a probate attorney quickly. Pulling medical records, identifying witnesses, and building the case takes time, and the deadline doesn’t wait.
What a Contest Costs
Will contests are expensive, and the cost surprises people who expect probate court to be straightforward. Attorneys typically charge hourly rates ranging from $200 to $500 depending on the market and the complexity of the case. Some will take contests on contingency, collecting 25% to 40% of the recovery, but contingency arrangements are less common in probate litigation than in personal injury work. Court filing fees are usually a small fraction of the total. The real expense is attorney time, expert witnesses, and medical record retrieval.
If a contest succeeds and the will is invalidated, some states allow the estate to reimburse the challenger’s attorney fees, on the theory that correcting a flawed will benefits the estate as a whole. It isn’t guaranteed, and courts have discretion, but it provides real financial relief when available.
Taxes on a Settlement
Many will contests settle before trial, with the excluded child receiving a negotiated payment. Under federal law, property acquired by inheritance is excluded from gross income. The Supreme Court addressed this in Lyeth v. Hoey, holding that property received by an heir through a compromise settlement of a will contest counts as an inheritance for tax purposes and is excluded from income tax, regardless of how state law characterizes the payment.1Justia. Lyeth v. Hoey, 305 U.S. 188 (1938) The statutory basis is 26 U.S.C. § 102, which excludes from gross income the value of property acquired by bequest, devise, or inheritance.2Office of the Law Revision Counsel. 26 U.S. Code 102 – Gifts and Inheritances
The exclusion covers the settlement itself. Any income the money later generates — interest, dividends, rental income — is taxable like any other income. Plan accordingly.
One State That Protects Children Automatically
Forced heirship — the rule that certain children are entitled to a share of the estate no matter what the will says — is common in civil law countries but almost nonexistent in the United States. Only one state, rooted in a civil law tradition rather than English common law, keeps a forced heirship regime. There, children under 24 at the time of the parent’s death, and children of any age who are permanently incapable of caring for themselves due to mental or physical incapacity, are “forced heirs” entitled to a reserved portion of the estate.
Everywhere else, testamentary freedom is the default. A parent can disinherit an adult child for any reason or no reason, as long as the will is properly executed and the parent had capacity. The tools covered above — pretermitted heir statutes, capacity challenges, undue influence claims, and execution defects — are what the law gives you to work with.