The relationship between spouses is remarkable in all contexts, not the least of which is the estate planning context. You can often exclude people from your estate plan, including your parents, siblings, and adult children. However, special protections are built into the law that may help protect an individual from disinheriting a spouse.
No matter your state, your surviving spouse is entitled to a specified share of what you own at your death. While state laws vary on the particulars of this protection, they are aligned on the fundamental premise that each spouse has a statutory claim to a portion of the deceased spouse’s money, property, and income.
You may have a legitimate reason for wanting to leave your spouse out of your estate plan. That reason may not even be related to bad blood. For example, your spouse may be independently wealthy and may agree that it would be better to leave your accounts and property to your children or a charity. However, unless your spouse has waived their statutory claim in a prenuptial agreement or postnuptial agreement (if legally recognized in your state), you may not be able to leave your spouse out of your estate plan entirely.
No state allows a spouse to be disinherited against their wishes. The amount surviving spouses are legally entitled to receive, however, varies by state and depends on the following key factors:
In some states, a prenuptial or postnuptial agreement can override spousal inheritance rights in both elective share and community property states.
Prenuptial agreements (signed before a couple is married) and postnuptial agreements (signed after marriage, but not legally recognized in all states) are contracts in which each spouse gives up their rights to the other spouse’s accounts and property in the event of divorce or upon their death (which includes a waiver of their right to the elective share). The provisions can be general and waive inheritance rights to all of their spouse’s accounts and property, or they can include carve-outs for some accounts or property.
These agreements are standard when a spouse wants to pass their money and property on to children from a prior relationship rather than their current spouse. A legally enforceable document showing that the disinherited spouse has waived their spousal rights can help avoid elective share litigation, which research has shown often pits a stepparent against their former stepchildren.
It is important to note, however, that, regardless of how it is structured, the pre- or postnuptial agreement can be ruled invalid under certain circumstances, such as when it is coerced, not executed with complete disclosure (e.g., one spouse hid assets or liabilities), or signed by a spouse who did not have the opportunity to consult with proper, independent legal representation before the time of signing.
The laws outlined above limit your ability to leave your money and property at your death to people other than your spouse. You have far more latitude in excluding or disinheriting your spouse; however, when it comes to selecting who manages your affairs when you are alive but cannot manage them yourself or who winds down your affairs after your death, you do not have to include your spouse in powers of attorney and healthcare directives.
If your spouse is currently named your power of attorney, you can change the designated agent on the document and give this power to a different individual. If you do not have a power of attorney and cannot manage your affairs, your spouse could petition the court to be appointed as your guardian or conservator, and spouses have priority to be appointed to such positions under most state laws. If the court does not know your wishes, it could allow your spouse to act in these critical roles.
You may consider limiting your spouse’s inclusion in your estate plan in several instances. Maybe you do not have the heart (or the energy) to divorce your spouse later in life. Perhaps your spouse already has significant money and property of their own, and you have agreed to pass it to those who need it more, such as your children from a prior relationship.
Whatever your reason for wanting to disinherit your spouse, state law may prevent you entirely, even if you modify your estate planning documents to reflect your wishes. Removing a spouse from an estate plan is more manageable if your spouse is on board with your plan.
To discuss spousal disinheritance laws in your state and what estate planning you can do on your own, book a Free a Discovery Call.
(By Appointment Only)
14425 Falcon Head Blvd
Bldg E-100
Austin, TX 78738