With modern estate planning comes unique challenges. Modern family structures are different from the traditional family structures of the past. There are same-sex and unwed couples raising children, estranged parents who stay married to raise their children, married couples who live completely separate lives but remain legally married, and many more types of modern situations.
Not as Easy as Simply Writing a Will
So what if you are legally married but wish to disinherit your spouse for one reason or another? The general belief is that if you make a valid Last Will and Testament or a Revocable Living Trust, you can dictate who gets your property after you die. However, the surprising fact is that in the majority of states, and the District of Columbia, you can't intentionally disinherit your spouse unless they agree in writing to be disinherited in a prenuptial or postnuptial agreement.
Moreover, the laws governing spousal rights at death, called community property laws or elective share laws—depending on the state—vary greatly from state to state. Some laws protect the surviving spouse based on how long the parties were married. Other laws depend on whether children were born of the marriage, and still, other laws depend on whether the deceased spouse leaves any assets that need to be probated.
Surviving Spousal Rights in Georgia
Currently, Georgia is the state that gives a surviving spouse the least amount of rights when it comes to taking a portion of the deceased spouse's estate. Under Georgia law, a disinherited spouse is only entitled to receive a monetary allowance from the deceased spouse's estate during the year following the deceased spouse's death, similar to the award of temporary alimony during a divorce. After that, the surviving spouse can't ask for additional support or anything else from the deceased spouse's estate.
Community Property States
At the time of writing, there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Laws change regularly, so be sure to talk to an attorney to be sure. In community property states, a disinherited spouse is entitled to receive half of the community property. However, the deceased spouse is free to give their half of the community property and all of their separate property to anyone named in a valid will or Revocable Living Trust.
UPC Elective Share Rights
Ten states—Alaska, Colorado, Hawaii, Kansas, Minnesota, Montana, North Dakota, South Dakota, Utah, and West Virginia—have adopted the definition of an augmented estate. These states use the Uniform Probate Code (UPC). In these states, the disinherited spouse can elect to take a portion of the deceased spouse's probate estate, non-probate assets, and property titled in either spouse's name. Note that in Alaska, spouses can elect to create a community property arrangement by written agreement.
Selective UPC Elective Share Rights
Nine states—Delaware, Florida, Maine, Nebraska, New Jersey, New York, North Carolina, Pennsylvania, and Virginia—have only adopted part of the definition of an augmented estate used in the UPC. In these states, a disinherited spouse can elect to take a portion of the deceased spouse's probate estate and some but not all non-probate assets.
Non-UPC Elective Share Rights
The remaining 21 states only allow a disinherited spouse to take a portion of the deceased spouse's probate estate. As a result, in these 21 states, the deceased spouse can completely disinherit the surviving spouse by leaving no assets that require probate. What does this include?