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Why It’s Not So Easy to Disinherit Your Spouse

why it's not so easy to disinherit your spouse by davis law group pc

Why It’s Not So Easy to Disinherit Your Spouse

April 13, 2023 Davis Law Group

In the United States, it’s not that easy to disinherit your spouse, but the same is not true for other family members.

Generally, you can use your estate plan to disinherit your brothers and sisters, your nieces and nephews, or even your very own children and grandchildren. In fact, it’s not uncommon for people to accidentally do this through poorly thought through estate planning.

However, in the majority of states and the District of Columbia, you can’t intentionally disinherit your spouse unless your spouse actually agrees to receive nothing from your estate in a Prenuptial or Postnuptial Agreement.

Disinheritance Laws Vary from State to State

Unfortunately, there isn’t one set of rules that govern what a surviving spouse is entitled to inherit. Instead, the laws governing spousal inheritance rights, referred to as “elective share laws” or “community property laws” will depend on the state where you live or own property and they can vary widely. Defined by each state’s laws, the surviving spouse’s right to inherit may be based on one or more of the following factors:

  • how long the couple was married;
  • whether or not children were born of the marriage;
  • the value of assets included in the deceased spouse’s probate estate; or
  • the combined value of an “augmented estate,” which includes the deceased spouse’s probate estate and non-probate assets.

For example, in Florida a surviving spouse has the option to receive a portion of their deceased spouse’s estate called the “elective share.” This share is equal to 30% of the deceased spouse’s “elective estate,” which includes the value of the deceased spouse’s probate estate and certain non-probate assets such as payable on death and transfer on death accounts, joint accounts, the net cash surrender value of life insurance, property held in a revocable living trust, and annuities and other types of retirement accounts, reduced by the deceased spouse’s debts (this is an example of the last category described above). But this isn’t necessarily the case in Virginia, North Carolina or any other state.

Aside from this, state laws also vary widely regarding the time limit a surviving spouse has to seek their inheritance rights, which can range anywhere from a few months to a few years. Things can also be complicated if the spouses are residents of different states.

What to Do if You’ve Been Disinherited

If your deceased spouse has attempted to disinherit you, you must seek legal advice as soon as possible before state law bars you from enforcing your rights. Only an experienced estate planning attorney can help you weigh all of your options and protect your interests as a surviving spouse.

If you’re concerned about his happening or are dealing with this legal issue right now, call Davis Law Group. Our experienced Estate Planning attorneys can assist you as you cope with grief, loss and the stress of the legal proceedings. Contact us today.