Do I Have to Leave Assets to My Spouse in My Will?

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Marriage creates certain legal duties and responsibilities between parties that would not otherwise exist without the benefit of marriage. One such right includes the right to inherit from a deceased spouse. Some spouses may specifically write out their spouse in their will. However, this may not be an effective way to disinherit a spouse. What the surviving spouse is entitled to depends on state law, where the property is located and whether any valid agreements exist between the parties.

Right to Inheritance

For the most part, a spouse has the legal right to inherit property from his or her spouse whether or not the spouse has a will. The amount that a spouse is entitled to receive depends on a number of factors, such as:

Community Property States

Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington and Wisconsin are community property states. Tennessee and Alaska allow couples to opt in to community property standards. These states reason that spouses each have an equal ownership interest in the assets earned or acquired during the marriage. In these states, spouses are usually allowed to receive half of the community property in the decedentís will. Community property includes the assets and income earned during the marriage. Property that was owned before the marriage, gifts or inheritances are excluded from community property. Separate property can be designated in a will or other document to go to another beneficiary.

Common Law Property States

The other states are common law property states. In these states, couples are allowed to own separate property even if it was acquired during the marriage. Ownership may be based on a title, deed or other document. However, common law property states do not allow a spouse to completely disinherit the surviving spouse, even if his or her estate is primarily comprised of separate property.

Laws of Intestacy

When a spouse dies without a will, the laws of intestacy apply. These are the default rules that come into play when a person does not have a will. The laws determine which relatives stand to inherit and to what extent. If the decedent died and had no children, his or her spouse may be entitled to all or a large portion of the assets. If there were children, the spouse may be entitled to a smaller portion of the estate. Often, spouses are entitled to at least one-third of the assets of the estate. However, the amount of the estate that the spouse is entitled to receive may depend on the length of the marriage.

Elective Share

If the surviving spouse does not like the extent of property allowed in the will, he or she can usually file a claim in court to receive his or her elective share. The elective share is usually the amount that would have been provided under the laws of intestacy. The surviving spouse is generally entitled to this portion of the estate.

The amount of the elective share is different in each state. Generally, the elective share is between one-third to one-half of the estate. If a spouse leaves less than the elective share in the will, the surviving spouse can usually make a claim with the probate court for the difference in what was left and what the spouse is entitled to receive. However, there are often time restrictions regarding how long this claim may be made, such as six months after the testatorís death. If this time limit passes, the spouse may lose his or her elective share and be barred from bringing forth the claim.

Legal Agreements

Spouses may agree to be excluded from a will in a valid prenuptial or marital agreement. These agreements may specify that a spouse will not have community property or marital property rights in certain property that is acquired. However, a surviving spouse may be able to challenge such an agreement after the decedentís death. He or she may argue that the agreement was fundamentally unfair. A court can look at the agreement from how it was procured procedurally as well as evaluate what the agreement calls for of a substantive nature. If the court finds the agreement is unfair, it may not be enforced and the spouse may then be entitled to the elective share.

Contact an Estate Planning Lawyer for Assistance

If you would like to learn about how to disinherit a spouse or others from your will, contact an experienced estate planning lawyer for assistance. He or she can explain what is and is not possible under your state laws.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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