If you were left out of a will, your options depend on who you are to the person who died. A surviving spouse can almost always claim a statutory share no matter what the will says. A child born or adopted after the will was signed may inherit as if the omission were an oversight. Everyone else — adult children deliberately cut out, more distant relatives, friends, unmarried partners — has to attack the will itself on grounds like undue influence, fraud, lack of mental capacity, or improper signing. All of these paths run on short deadlines, so the first move is figuring out which category you fall into.
Do You Even Have the Right to Challenge?
Probate courts call this “standing,” and without it nothing else matters. To contest a will, you generally have to be someone the outcome would personally affect. That means one of two things: you were named as a beneficiary in an earlier version of the will, or you are an heir who would inherit under state intestacy law if the will were thrown out. Intestate heirs typically include a surviving spouse, children, parents, and siblings, roughly in that priority.
Close friends, distant relatives, and people the deceased informally promised to take care of almost never have standing. Confirming this early is worth the phone call, because filing a petition only to have it dismissed for lack of standing burns money and the clock at the same time.
If You Are the Surviving Spouse
No state allows a will to completely disinherit a surviving spouse who objects. If the will leaves you little or nothing, you can elect to take a statutory share of the estate instead. This is called the elective share, or in older terminology the forced share. In states following the traditional approach, it runs between roughly one-third and one-half of the estate. States using the Uniform Probate Code’s model tie the share to the length of the marriage and apply it to an “augmented estate” that can sweep in non-probate assets like joint accounts and life insurance.
Community property states handle it differently. Each spouse already owns half the community property earned during the marriage, so the will can only dispose of the deceased spouse’s half. The surviving spouse keeps their 50 percent regardless of what the document says.
To claim an elective share, you have to file a formal election with the probate court. Deadlines are strict and often fall within a few months of probate opening. Miss the window and the right is usually gone for good.
Separately, many states provide a family allowance that lets a surviving spouse and minor or dependent children draw on estate funds for living expenses during probate. It takes priority over almost all other claims and applies regardless of what the will says. A homestead allowance or exemption may also protect the primary residence, letting the spouse or minor children stay in the home even when the will leaves the property to someone else.
If You Are a Child Who Was Left Out
The answer here splits sharply depending on when you came into the picture.
A child born or adopted after the will was signed may qualify as a “pretermitted heir.” Most states presume the parent simply forgot to update the document, and the omitted child receives whatever they would have inherited had the parent died without any will at all. The presumption gets rebutted if the will expressly disinherits future children, or if the parent already provided for the child through a trust or other transfer. Some states extend the same protection to a child who was alive but mistakenly believed dead when the will was written.
Adult children get no such protection. This catches people off guard: unlike spouses, an adult child can be completely and intentionally disinherited in every state. If a parent of sound mind writes “I leave nothing to my son,” the son has no automatic statutory remedy. The only path forward is to attack the will itself.
Grounds to Contest the Will
If no automatic right covers your situation, you can challenge whether the will should be enforced at all. Courts take these challenges seriously but set a high bar, since the person who wrote the will is no longer around to explain anything. The burden of proof is on you.
Undue Influence
This is the most common claim and one of the hardest to prove. Undue influence means someone in a position of trust or power over the testator pressured them into decisions they would not otherwise have made. Think of a caregiver, new romantic partner, or family member who isolated the testator and steered the estate planning. Courts look at the full picture: a dramatic shift in the will shortly before death, the influencer arranging meetings with the attorney, physical or emotional dependence. No single fact wins the case, but a pattern combined with a suspicious change can be persuasive.
Lack of Testamentary Capacity
To make a valid will, the testator had to understand what they owned, who their natural heirs were, what a will does, and how those pieces fit together. The standard is not especially high. Someone with early dementia, or who was elderly and frail, or simply eccentric, can still have capacity. What matters is their state of mind on the day the will was signed. Proving incapacity usually takes medical records showing cognitive decline around that date, testimony from people who interacted with the testator at the time, and often a medical expert to interpret the picture. Many contests collapse here, because families noticed confusion in the final months but have nothing documenting the testator’s condition on the specific day of signing.
Fraud
Fraud is outright deception: tricking the testator into signing a document they did not understand, misrepresenting its contents, or forging the signature. Less common than undue influence or capacity claims, but devastating when proven. Evidence can include inconsistent signatures, testimony from the witnesses present at signing, and forensic handwriting analysis.
Improper Execution
Every state has formal rules for how a will must be signed and witnessed. Most require the testator’s signature and at least two witnesses watching the signing. Some states accept handwritten (holographic) wills without witnesses; others do not. A will that fails these formalities can be invalidated on procedural grounds alone, without proving anything about the testator’s mind or anyone’s conduct.
The No-Contest Clause Problem
If the will left you even a modest bequest, read it carefully before you file anything. Many wills contain a no-contest clause, sometimes called an in terrorem clause, that strips any beneficiary who challenges the will of whatever they were set to receive. Lose the challenge, and your $10,000 inheritance becomes zero.
Most states enforce these clauses, but many recognize a safety valve: if you had “probable cause” to bring the challenge, the clause does not fire even if you lose. Probable cause generally means a reasonable person in your position would have believed the challenge had a realistic chance. A few states refuse to enforce no-contest clauses at all as against public policy.
If you were left nothing, a no-contest clause has nothing to take. It mostly threatens people who got something and are gambling on getting more. This is the conversation to have with a probate lawyer before filing.
How Long You Have to Act
Time is the enemy. Every state imposes a statute of limitations for contesting a will, and the deadlines are unforgiving. The window typically runs from a few months to two years, depending on the state and the triggering event. In some places the clock starts when the will is admitted to probate; in others, when interested parties receive formal notice. Miss the deadline and your right to contest is almost always gone, no matter how strong the case would have been. The same urgency applies to a spouse’s elective share, which usually must be filed within a few months of probate opening.
What a Will Contest Costs
Will contests are expensive, and anyone considering one should go in with realistic numbers. Court filing fees range from under $100 to several hundred dollars depending on the jurisdiction. Attorney fees are the real expense. Probate litigators commonly charge $200 to $500 an hour, and major metro rates run higher. A straightforward challenge might cost $10,000 to $25,000 in fees; a complex case that goes to trial can run well into six figures.
Some attorneys take will contests on contingency, keeping between 25 and 40 percent of what the client recovers. That removes the upfront risk but costs more if the case succeeds. Expert witnesses — medical experts on capacity, forensic document examiners on signatures — add another layer. The default American rule is that each side pays its own legal costs no matter who wins. Probate courts can shift fees in unusual cases, but you should not count on the estate reimbursing your bills.
What Usually Happens
Most will contests never reach a verdict. Estimates put the settlement rate above 90 percent, which makes sense given the cost, uncertainty, and emotional strain of a full trial. A settlement typically gives the challenger a negotiated piece of the estate in exchange for dropping the case. Neither side gets everything, and both avoid the risk of losing outright. Mediation is increasingly common and sometimes required before a contest can proceed.
If a case does go to trial, the court can invalidate the entire will, strike specific provisions and leave the rest, or uphold the will as written. Full invalidation sends the estate to a prior valid will if one exists, or to intestacy if not. Intestacy generally favors the surviving spouse, then children, then parents, then siblings. Partial invalidation lets the court remove a tainted provision while keeping the rest of the plan.
What to Do First
Act quickly. Get a copy of the will, which becomes a public document once filed with the probate court. Read it closely and note whether it contains a no-contest clause. Find out when probate was opened, because that date may already be running your statute of limitations.
Then consult a probate litigation attorney before doing anything else. Many offer a reduced-rate or free initial consultation. A good one can tell you whether you have standing, which legal theories fit your facts, whether your evidence is strong enough to justify the cost, and how much time you have to decide. The worst outcome is not losing a will contest. It is learning too late that you had a real case and ran out of time to bring it.