When planning your estate, it might seem like you have complete control over where your assets go—but if you’re married, that’s not entirely true. Many people are surprised to learn that in most states, you cannot simply write your spouse out of your will or trust and expect it to stick. In fact, the law provides certain protections for surviving spouses, regardless of what your estate planning documents say.
The Elective Share: A Spouse’s Legal Right
Most states have laws that protect a surviving spouse from being completely disinherited. These laws often take the form of an “elective share,” which allows a surviving spouse to claim a portion of the deceased spouse’s estate—typically one-third to one-half—regardless of what the will says. This ensures that spouses are not left destitute due to disinheritance, especially in long-term marriages.
Common Misconception: “It’s My Money”
Many people assume that if an asset is titled in their name alone, they can leave it to whomever they wish. While that may be true for certain assets like individually owned bank accounts, the elective share applies to the total value of the estate. This includes real estate, retirement accounts, investment portfolios, and even some trust assets, depending on the state.
Can You Disinherit a Spouse?
In very limited situations—such as if a couple has a valid prenuptial or postnuptial agreement—disinheritance may be possible. These agreements must be signed voluntarily, with full financial disclosure, and typically with each party represented by separate legal counsel. Absent such an agreement, attempting to completely disinherit a spouse will likely lead to legal challenges and probate litigation.
How to Plan Thoughtfully
If you’re considering disinheriting your spouse—or if you have unique concerns like a blended family or significant premarital assets—it’s essential to consult with an experienced estate planning attorney, such as the Davis Schilken, PC. There are legal strategies that can help you balance your wishes with the law, but they must be implemented carefully and proactively.
Final Thought
Estate planning is about more than distributing your assets—it’s about making sure your plan reflects your values, protects your loved ones, and complies with the law. Disinheriting a spouse is not as simple as crossing out a name in your will. If you want clarity and control over your legacy, start by understanding your legal obligations—and planning accordingly. Give our team a call today to schedule a no obligation meeting (303)670-9855. We make estate planning simple.