The relationship between spouses is significant, especially in estate planning. While you can exclude certain family members like parents, siblings, and adult children from your estate plan, excluding a spouse is not as straightforward. Legal protections exist to prevent a spouse from being disinherited.

Understanding Spousal Rights in Estate Planning

Regardless of where you live, your surviving spouse is entitled to a specific share of your estate. While state laws differ in how they protect a spouse's rights, the underlying principle is consistent: a spouse has a legal claim to a portion of the deceased's assets.

Reasons for Excluding a Spouse from an Estate Plan

There are legitimate reasons for wanting to exclude a spouse from your estate plan. It may not always stem from conflict; for example, a spouse might be financially independent and agree that your assets should go to children or charity. However, unless your spouse has waived their rights in a prenuptial or postnuptial agreement (where legally recognized), you may not be able to disinherit them entirely.

State Laws on Disinheriting a Spouse

No state allows you to disinherit a spouse against their will. However, the amount they are legally entitled to varies based on several factors:

1. Elective Share: An elective share, also known as a spousal share, gives a surviving spouse a fixed portion—typically one-third to one-half—of the deceased spouse's estate. Some states apply this to the probate estate, while others include the augmented estate, which factors in non-probate assets like life insurance, retirement accounts, and property held in a revocable trust.

2. Community Property States: In community property states like Arizona, California, and Texas, spouses equally own assets acquired during marriage. A surviving spouse is entitled to half of this community property.

Prenuptial and Postnuptial Agreements: A Way Around Spousal Rights

Prenuptial and postnuptial agreements can override spousal inheritance rights in some states. These agreements allow spouses to waive their rights to each other's assets upon death or divorce. Such agreements are particularly common when one spouse wants to ensure their assets go to children from a previous relationship. However, these agreements must be executed with full disclosure and proper legal representation to be enforceable.

Estate Planning Without Spousal Considerations

While the law may limit your ability to exclude your spouse from receiving assets upon your death, you have more flexibility when determining who will manage your affairs if you become incapacitated. You can appoint someone other than your spouse in roles like power of attorney or healthcare proxy.

• Power of Attorney: This allows someone to manage your financial and medical decisions. You can choose someone other than your spouse for this role.
• Advance Directive: This outlines your healthcare wishes in case you are unable to communicate them. You are not required to name your spouse as your healthcare agent.

Living Together, Planning Separately: What You Need to Know

There are many reasons you might want to limit your spouse's involvement in your estate plan. Whether it's to provide for children from a prior relationship or because your spouse is financially independent, state law might prevent complete disinheritance. However, if your spouse agrees, the process can be more straightforward.

Consult with an Estate Planning Attorney

If you're considering disinheriting your spouse or need advice on spousal rights in your state, our experienced attorneys can help. Contact us today to explore your options and ensure your estate plan aligns with your wishes.