In most states and the District of Columbia, you can’t intentionally disinherit your spouse unless your spouse agrees to receive nothing from your estate via a prenuptial or postnuptial agreement.
Spousal Disinheritance Laws Vary by State
Many different sets of rules govern what a surviving spouse is entitled to inherit from you after you’re gone. The laws governing spousal inheritance rights, referred to as “elective share laws” or “community property laws” depend on the state where you live or own property, and they vary widely. The surviving spouse’s right to inherit may be based on any 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 probate estate and non-probate assets.
For example, in New York or Florida, a surviving spouse may receive a portion of their deceased spouse’s estate called the “elective share.” This share is equal to, approximately, 1/3 of the deceased spouse’s “elective estate.” An elective estate includes the 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 that are left after the deceased spouse’s debts have been paid (this is an example of the last category described above).
State laws also vary regarding the time limit a surviving spouse has to assert their inheritance rights. This timeline may range from a few months to a few years.
Disinherited Spouses Should Act Quickly
If your deceased spouse has disinherited you, or tried to, seek legal advice quickly before state law forbids you from enforcing your rights. An experienced estate planning attorney can help you weigh your options and protect your interests.