Can I disinherit my Spouse?

When completing their wills, the overwhelming majority of married couples leave everything to their spouse and, if that spouse does not survive, then to the surviving children if any or to alternate beneficiaries if there are no children. Occasionally though, one spouse may attempt to disinherit and leave nothing to their current spouse in their will. This is not as easy as it seems – and if you are contemplating leaving your spouse out or disinheriting them you should seek legal counsel to make sure you are aware of the risks.

Most state laws are written to prevent one spouse from leaving nothing to the other without varying specific requirements, formalities, and in most states, it simply can't be done unless your spouse agrees in writing to be disinherited in a prenuptial or postnuptial agreement. While you may believe there are good reasons to do so, the laws in almost every state protect the spousal right to a portion of the marital estate and the laws covering this issue vary widely from state to state and unfortunately there isn't one set of rules that govern what a surviving spouse is entitled to inherit. Instead, the laws that governing spousal inheritance rights, referred to as community property laws or elective share laws depend on the state where you live or own property. In some states the surviving spouse's right to inherit is based on how long the couple was married. In others the surviving spouse's right to inherit is based on whether children were born of the marriage or it's based on the value of assets included in the deceased spouse's probate estate. In still others, the surviving spouse's right to inherit is based on an "augmented estate" which includes the deceased spouse's probate estate and non-probate assets. Many states (New York for example) allow the disinherited spouse to claim a specific dollar amount ($50,000) or 1/3 of some of the estate assets anyway regardless of what the will directs.

The bottom line:

If you intend to disinherit your current spouse or do not plan to leave at least half of your property to them, you no longer have a "simple will" and should consult an experienced estate law attorney in your jurisdiction.

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