Disinheriting a Spouse

2 min read

Spouses can be beneficiaries in a Will, and there are laws that protect the surviving spouse from being disinherited. A Premarital Agreement is an exception.

Most of the time, spouses are the major beneficiaries in a last will and testament. Even so, there are laws in all states that protect the surviving spouse from being disinherited. Some allow the spouse to take an elective share of the estate, usually one-third, regardless of the provisions in the last will. One method to disinherit a spouse may be through the use of a Premarital or Prenuptial Agreement, but the courts are apt to closely scrutinize such agreements to make sure that the agreement was signed in good faith and with full disclosure of assets.

If you do not want to leave property to your spouse, you should be aware that many states "protect" spouses with laws that permit a spouse to receive a portion of the estate even though the last will does not provide for the spouse. You may want to consult with a lawyer regarding the legal rights of your spouse to receive property from your estate, despite the provisions of your will to the contrary.

An agreement between you and your spouse, signed prior to your marriage (known as a Premarital Agreement) may permit you to exclude your spouse from your last will. It's possible to put limitations on the property that you leave to a spouse through the establishment of trusts for the benefit of your spouse that come into existence after you die. You should consider the following factors in deciding what kind of trust is best for your circumstances:

The possibility that your spouse's needs may increase in the future
The manner of living to which your spouse is accustomed
The ability of your spouse to provide for his or her own needs
The ability of your spouse to manage the trust assets
The possibility that your spouse may remarry and the effect the marriage may have on your children or other beneficiaries.