Can I Disinherit My Spouse?

Family structures and dynamics change and are unique to every individual. Same-sex and unwed couples can raise and share children, just the same as its common for legally separated marriages to exist. A valid concern for some of these family units is estate planning and property division, in addition to naming legal rights over children. Can I disinherit my spouse is among frequently asked questions. Disinheriting a spouse is straightforward, but in the respect of family dynamics not an easy topic to approach. Here's what to know about protecting assets and disinheriting a spouse.

Of course, an estate or trust attorney can provide guidance on the proper ways to file wills that are aimed to disinherit a spouse. It's also important to consider prenuptial and postnuptial agreements. 

To plan your will today, use a trusted but simple resource. Using Wills.com you can prepare a will online today. 

What Is Disinheritance?

To put it simply, disinheritance is the process of preventing a person from receiving any of your property in the event of your death. To disinherit a person, a testator will go through the process to ensure that a specific person is excluded from inheriting any assets or property. Usually, this is done by excluding someone from the will or by including a disinheritance clause in an existing will. 

Disinheriting A Spouse Or Person From A Will

Traditionally when you die, your estate is arranged to pass onto living heirs. If you decide to disinherit someone from your estate, they will be legally unable to inherit existing property or assets. However, the process legally is straightforward, but with nuances. 

The easiest way to disinherit a spouse is through a prenuptial or postnuptial agreement. This legally binding document serves as an agreement between two parties about the division of property and the exclusion of one person from a will. Contractually, the spouse set to be disinherited should agree to the terms and sign for it to be legally binding. 

Unfortunately, the sensitivity around this subject makes it difficult for spouses to agree on terms. If the disinheriting spouse disagrees, the testator will have to pursue other options and negotiations. 

Does A Marriage Override A Will?

If you are not married to your spouse then you can legally disinherit them in your will. However, if you are married, you cannot disinherit your spouse from your estate, unless it was agreed with your spouse in a prenuptial agreement. If there was never a prenup, and you still want to disinherit your wife or husband from your will, then the local jurisdiction may override your wishes. Then when you die your spouse may still receive a certain amount of your estate, 

If you decide to disinherit your spouse, you can only disinherit them from your real estate. You cannot disinherit your personal property.

For example, if you own your own business, you can disinherit your spouse from receiving any shares of stock. However, you cannot disinherit them from getting cash from the business. It's also important to note that laws vary from state to state, but in a community property state, a spouse has legal right to one-half of the estate assets acquired during a marriage. 

How To Disinherit Your Spouse

A will is a legal document that tells how you want your assets distributed after you die. It usually contains instructions for dividing up your possessions among your children, grandchildren, siblings, parents, or others.

When you write out a will, you have to specify which assets you want to leave to whom. In addition, you can state whether you want to leave anything to charity.

If you use a will to disinherit someone from your estate, you need to follow these steps:

First, you need to write down all the people who you want to disinherit in your will, including your spouse. Second, you need to specify what you want to happen to each asset you own. Then, you need to tell the probate judge exactly where you want to distribute your assets.

After you've written out your will, you need to sign it and  get it notarized. This means that you need to go to a notary public and ask him/her to witness your signature on the will

Once you've done all of this, keep your will safe. Then, once you have died, your will should be sent to the probate court.

What Is A Spouse Legally Entitled To With Or Without A Will?

In most states, a person's surviving spouse has an automatic right to half of his or her deceased spouse's estate. The law does not require a will to make this division.

However, if the decedent did not leave a valid will, the surviving spouse is entitled to the entire estate. The surviving spouse must file a petition to probate the will within six months of the death of the decedent. Once the will is probated, the surviving spouse receives the full value of the estate.

The surviving spouse is also entitled to receive a share of any insurance policies owned by the decedent. This only happens when the spouse is married to the deceased. Unmarried partners are not entitled to inherit anything if someone dies without a will, and they can also be disinherited in a will as well, as they aren't legally connected. 

Wording Used To Disinherit Someone From A Will

Can I disinherit my spouse? To disinherit someone in a will, you need to use specific words such as "I hereby disinherit" or "I give nothing to". For example, "I hereby disinherit my son John from inheriting my house," or "I choose to leave no assets to my son John. 

You can also say something like "I give everything to my daughter Jane," but this is not enough to disinherit anyone from your estate. It's best to say who you are disinheriting instead. 

Ways A Spouse Can Contest A Will After Death

Spouses often contest wills because they don't think their partner left them enough money. If a spouse contests a will, he or she may try to take away some property left to another family member.

For example, let's say that you wrote a will leaving $100,000 to your wife. Your wife then files a lawsuit asking the court to change your will so that she gets more than half of your estate. She might argue that you didn't really mean to leave her $100,000.

A spouse could contest that the deceased was not in sound mind when he/she created the will. Or that they were forced to say certain things by other family members, or that they didn't understand they were making a will. If a spouse believes that the will is invalid, that they have a claim to testify the legitimacy of the will. 

A spouse may make a claim using the Inheritance Act, which allows you to make a claim against your spouse's estate. There is also the provision for family and dependents acts from 1974, a spouse will be treated generously by the courts if they claim under this act.

Wills.com: Creating Your Will Today

Regardless of inheritance needs for your particular situation, having a last will and testament is important to ensure your family, assets, and property are protected. Creating a will is now easier than ever with online, simple to use tools.