Disinheriting a Spouse

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What Is Disinheritance?

Disinheritance occurs when you actively take steps to ensure that someone is excluded from inheriting anything from your estate after you die. You can disinherit someone by either completely omitting them from your will or by stating in your will that you do not want them to receive any part of your estate.

Can I Disinherit My Spouse?

A surprising number of people try to disinherit their spouses in their wills. Sometimes, this is because the spouse is already well off and does not want or need any inheritance, but the disinheritance also could simply be the result of a bitter dispute.

Generally, though, it is not possible to completely disinherit your spouse. Most states have what are known as “equitable distribution” property laws. These laws allow your spouse to choose between taking what is left for them in your will or taking a share of your estate.  This share is usually between one third and one half of your estate.

A handful of states, including California, follow community property laws.  This means that one half of what you have made or acquired during your marriage belongs to your spouse both during and after your marriage.  However, you can distribute your half however you want to in your will.

Is There Any Way to Actually Disinherit My Spouse?

The only real way to successfully disinherit your spouse is for you and your spouse to agree to the disinheritance ahead of time. If your spouse does not have an issue with receiving less than the law allows, and therefore does not dispute your will, then there is no problem. Also, a number of couples sign contracts, such as prenuptial agreements or postnuptial agreements, in which each spouse waives their right to the other spouse's property.

Can a Lawyer Help Me Disinherit My Spouse?

Planning how you want your estate distributed after you die is one of the most important and complex decisions you will ever make. If you have questions about wills or disinheritance, you should consult with an estate lawyer. An estate attorney can explain the relevant laws to you and let you know what your options are for disinheriting family members, including your spouse.

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Last Modified: 02-05-2015 09:29 AM PST

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