Warning: You Can’t Easily Disinherit Your Spouse

Warning: You Can’t Easily Disinherit Your Spouse

Believe it or not, in the U.S. it isn’t 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.

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. While there may be good reasons to do so – for instance, if your spouse is independently wealthy, but your side of the family needs your assets – the laws in almost every state protect the spousal right to a portion of the marital estate. Read on to see when and how it’s possible to disinherit your spouse.

Beware:  Spousal Disinheritance Laws Vary Widely 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 “community property laws” or “elective share laws,” differ depending on the state where you live or own property. These laws vary widely:

  • In some states, such as Colorado, the surviving spouse’s right to inherit is based on how long the couple was married.
  • In some states the surviving spouse’s right to inherit is based on whether or not children were born of the marriage.
  • In some states the surviving spouse’s right to inherit is based on the value of assets included in the deceased spouse’s probate estate.
  • In some states 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.

For example, in Colorado, a surviving spouse has the right to receive a portion of their deceased spouse’s estate. This is called the “elective share,” and it is not possible to disinherit your spouse without their agreement.  This share is equal to 5% per year of marriage, up to 10 years, to equal a maximum of 50% of the deceased spouse’s assets. It applies to an augmented estate, which is an example of the last situation listed above. The augmented estate includes both the value of the deceased spouse’s probate estate as well as 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).

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.

Disinherited Spouses Need to Act Quickly!

If your spouse has attempted to disinherit you, or if you are seeking to minimize your spouse’s inheritance, 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.

Dan McKenzie
Dan McKenzie
dan@themckenziefirm.com

Dan specializes in estate planning, estate administration, and small business counsel. He opened the McKenzie Law Firm in 2013, after spending 10 years as a litigator, seeing what can happen when people fail to carefully identify and mitigate their risks. He is pleased to be raising four kids in the same state where he grew up.