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Can a spouse be disinherited if they are still married?

Technically, in most states, a spouse cannot leave their significant other out of a Will without some portion of their assets going to that spouse. However, they might be able to take other steps to work around the automatic protections provided to spouses in probate, or the process during which a deceased individual’s estate is distributed.

For instance, in some states, the individual who wants to disinherit their spouse may be able to move all of their assets to estate planning vehicles that do not require automatic spousal distribution during probate. For instance, they could move assets and name other beneficiaries on the following estate planning tools:

  • Bank accounts or other financial accounts using payable on death (POD) or transfer on death provisions (TOD).
  • Life insurance.
  • IRA and annuity beneficiaries.
  • Revocable Living Trusts.

It can take some creative planning to make an estate plan that accomplishes the goal of disinheriting a spouse, but it is permitted in some states. However, some states may prohibit you from using this “workaround.”

How does living in a community property vs. a non-community property state impact this?

In a community property state like California or Texas, a spouse automatically receives one-half of all of the community property, regardless of whether they were disinherited. However, the deceased spouse can still give their half of the community property to someone else in their Will or Trust if they so choose. The only way around this general rule is to try to utilize a Prenuptial or Postnuptial Agreement between the spouses.

In a non-community property state (also known as a common law state), spouses use the Elective Share rule or Right of Election. This rule entitles a spouse to receive a portion of their spouse’s estate, regardless of what any estate planning tool, including a Will, might say. Usually, this portion is one-third, but it can vary by state. In some states, the portion is paid in ongoing support from the estate rather than a lump sum. The surviving spouse generally has to petition the court to request their share if it was not provided in a Will or Trust.

Can a Prenuptial or Postnuptial Agreement allow the disinheriting of a spouse?

In some states (and some situations), spouses can agree to be disinherited. They can make this agreement either before they get married or after they are married. In this scenario, the spouse is required to sign a formal legal document‌ — ‌a Prenuptial Agreement or Postnuptial Agreement — that sets out that they are waiving whatever rights they have to the other spouse’s property upon their death.

A Prenuptial or Postnuptial Agreement can limit inheritance in general, or it can keep certain property out of the marital estate. If the agreement creates a carve-out for certain property, that property is unlikely to be included in whatever assets the surviving spouse would automatically receive based on state law.

There are some strict guidelines associated with these agreements, however. It is critical that they be entered under no duress and with complete disclosure. As an example, if a wife is hiding a million dollars from her husband and he signs a Prenuptial Agreement, that agreement might not be valid because the husband did not fully understand what he was giving up.

Practically speaking, many spouses are unwilling to agree to be disinherited or waive their legal rights to assets, regardless of whether it is before or after a marriage. Instead, this type of waiver is usually negotiated as part of a Divorce Settlement Agreement or Marriage Separation Agreement, and the other spouse gets something in return for their agreement to be disinherited.

How soon can I remove my former, or soon-to-be former, spouse from my Will and other estate planning documents?

You can remove your spouse from your estate planning documents at any time. In some situations, you might be required to provide your soon-to-be-ex-spouse with notice of changes. Talk to a lawyer about whether this unique requirement applies to your situation.

However, if you remain married, keep in mind that simply removing a spouse’s name from a Will may not completely disinherit them or limit their rights to your assets. A better practice is to work through the divorce process and then, once the divorce is finalized, immediately take steps to adjust your estate planning documents.

In some situations, if you do not remove a former spouse from some types of documents, those assets may still go to a former spouse.

In most states, if your former spouse is still listed as part of your Will, they are treated as if they predeceased you and are automatically removed from the Will‌ — ‌but that is not the case in every state, and that general rule does not apply to other estate planning tools. For instance, the following might not change beneficiaries, even in the event of a divorce:

  • Pensions.
  • Retirement accounts.
  • Bank accounts.
  • Life insurance beneficiaries.

It is a good idea to review all of these documents as part of the divorce process to ensure you know what to change once everything in the divorce has been finalized.

Which estate planning documents require updating after a divorce or separation?

In general, it is a good idea to do a complete review of your estate plan after any major life change, including a divorce or separation. You may be required to revise certain documents or wish to update beneficiary information.

Examples of documents that may require adjustment include:

If adjustments won’t do the trick, you may wish to consider a Living Trust Revocation or Revocation of Power of Attorney, depending on your state and specific situation.

Can I change my retirement plan and insurance beneficiaries before a divorce is finalized?

As a general rule, you can change your retirement plan and beneficiaries on retirement and life insurance accounts whenever you would like. However, there might be restrictions on which beneficiaries can be changed based on agreements in a divorce decree. If keeping a spouse on a specific asset was agreed upon as part of any divorce settlement, you might not be able to change it. In some circumstances, you can ask the court to allow you to make this change, but that may not be possible in every situation, either.

If there are no restrictions, it can be a good idea to go ahead and make the changes now while you are thinking about it to avoid the potential of forgetting about them after the divorce. Talk to your divorce attorney to be sure about how changing this information now might affect your divorce.

If you have specific questions about your unique situation, whether it involves divorce, estate planning, or both, contact a Rocket Lawyer network attorney. Rocket Lawyer also offers a wide variety of resources so you can learn more on your own.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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