Disinheriting a Spouse

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 What Is Disinheritance?

Disinheritance is when a person who may have otherwise received assets from a family member’s estate is intentionally left out of the testator’s will. “Testator” is the term used to describe the person who created the last will and testament. A “will” is the written document that outlines how the testator’s assets, money, and real or personal property is distributed after their death. The people who receive gifts of money or property according to the terms of the will are called “beneficiaries.”

A person can be disinherited because they have been left out of the will completely, or because the testator specifically stated in the will that they do not want that family member to receive any part of the estate. For example, the testator might go out of their way to name a family member in their will and include a statement that they do not want that person to receive anything from their estate. This is to make the testator’s intent clear in the face of any challenge to the will.

Whether the testator’s desire to partially or completely disinherit their spouse will be honored will depend on state law, regardless of how explicit the testator was when they drafted their will.

Can I Disinherit My Spouse?

While it is not impossible to disinherit a spouse, it is generally not as simple as just leaving them out of the will. Most states have laws that outline spousal inheritance rights. These laws might be referred to as “community property laws,” “elective share laws,” or “equitable distribution laws.” 

Many states have laws that protect surviving spouses from disinheritance. In those states a spouse who has been left out of the will, or has been left less than what would be considered equitable, can choose to take a larger share of the estate. Depending on the state’s law, that portion might be between one third and one half of the estate.

Can I Disinherit My Spouse if I Live in a Community Property State?

Community property is any property acquired by one or both spouses during the marriage. Property includes income, real and personal property purchased during the marriage with community money, and retirement and savings accounts. Community property does not include gifts on inheritances received by one party during the marriage. It does not include any property or assets the spouse had before the marriage or acquired after a legal separation.

A small number of states, including California, are community property states. In terms of estate planning, that means that a spouse is free to dispose of their half of the community property in their will in any way they choose. They are not required to leave any or all of it to their surviving spouse. 

Can I Disinherit My Spouse if I Love in a Common Law State?

In a common law state spouses do not have an equal interest in the property acquired during the marriage. Ownership is owned by determining who earned the money, which spouse’s income purchased the property, or whose name is on the title, regardless of who earned the money to purchase it. For example, a vehicle titled in one spouse’s name belongs to the spouse, even if their money was not used to buy it.

Spouses in common law states are protected from complete disinheritance. A spouse who was not left anything in the will is entitled to claim a portion of the deceased spouse’s estate. In most states the surviving spouse can claim up to one third, though some allow them to take half. 

A testator can leave their spouse less than what state law mandates as an inheritance right, meaning the spouse has not been completely disinherited. However, the surviving spouse can then make a claim with the probate court for the entire amount they would have inherited had they been left out of the will all together. 

If We Divorce is My Spouse Disinherited?

In the case of divorce, state law will determine whether an ex-spouse still inherits under the will. In many states bequests to the ex-spouse will automatically be revoked once the divorce is final. In other states a divorce will not affect any bequests to the ex-spouse. The testator should be sure to create a new will when their divorce is final. 

Is There Any Way to Actually Disinherit My Spouse?

The only way to completely disinherit a spouse is for you and your spouse to come to an agreement regarding the disinheritance. If the spouse agrees not to inherit, or to inherit less than the state would otherwise guarantee them, then there will not be a problem. If the spouse does not dispute or contest the will, they will not receive anything. 

In many cases spouses will sign a contract, known as a prenuptial or postnuptial agreement that addresses how property will be divided in the case of divorce or death. In those documents a spouse can waive any right to inherit the other spouse’s property. As with any contract, the agreement should be in writing. 

Will My Spouse Receive an Inheritance if I Do Not Have a Will?

A person who dies without a will is said to have died “intestate.” The person’s property will be distributed according to the intestacy laws of the state where the person lived. The state laws will determine how much of the estate the spouse inherits and will usually depend on whether the decedent had any children and whether the state is a community property inheritance law state or common law inheritance rule state.

If the decedent died without a will and had no children the spouse will usually inherit everything. In some cases the decedent’s surviving parent or parents will receive a portion of the estate. 

If there are children the spouse will usually have to share the estate equally with the children. If there is one child they will each get half. If there are two children the spouse and each child will each receive one third of the estate. Some states will give the spouse a percentage of the estate and then divide the remainder equally among all of the children. In other states the spouse receives everything, leaving the children to rely on the surviving parent to leave them anything that remains of the estate when they die. 

Ultimately, if the goal is to disinherit a spouse or make sure that they do not receive more of your estate than you want, there needs to be a will specifying the gifts. In a state that protects spouses from being disinherited, there will need to be a contract or agreement outlining the surviving spouse’s consent to inheriting less than the law would otherwise guarantee. 

Can a Lawyer Help Me Disinherit My Spouse?

Estate planning, or deciding how you want your property to be distributed after you die is an important decision. Depending on your circumstances it can also be quite complex. In order to make sure your property is distributed the way you want, you should consult with a will lawyer. The only way to make sure your specific wishes are honored is to have a legal and valid will that conforms to state law.

An experienced attorney can help you make a plan for your property and advise you regarding any options you might have for disinheriting your spouse. They can help you draft a will and/or a prenuptial or postnuptial agreement if one would be appropriate for your situation.

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