Disinheriting a Spouse

Understanding Community Property and Elective Share Laws

Bride and groom figurines standing on two separated slices of wedding cake
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With modern estate planning comes unique challenges because today's families are different from traditional families 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 nonetheless remain legally married, and many more types of modern families.

So what if you are legally married but wish to disinherit your spouse for one reason or another? The general rule is that if you make a valid Last Will and Testament, then you can dictate who gets your property after you die. But the surprising fact in this day and age 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, some laws depend on whether children were born of the marriage, and some laws depend on whether the deceased spouse leaves any assets that need to be probated.

Here is an overview of the types of rights surviving spouses can have when it comes to getting a share of the deceased spouse's estate, even if the surviving spouse has been completely cut out of the deceased spouse's Last Will and Testament and Revocable Living Trust.

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.

Spousal Rights in the Community Property States

Currently, there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In community property states a disinherited spouse is entitled to receive their half of the community property, but the deceased spouse is free to give their half of the community property and all of their own separate property to anyone named in a valid will or Revocable Living Trust.

Elective Share Rights in States That Follow the UPC

Ten states—Alaska, Colorado, Hawaii, Kansas, Minnesota, Montana, North Dakota, South Dakota, Utah, and West Virginia—have adopted the definition of an augmented estate as used in 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.

Elective Share Rights in States That Follow Part of the UPC

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 as 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.

Elective Share Rights in States That Ignore the UPC

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?

  • All property titled in the name of the deceased spouse's Revocable Living Trust
  • All property in which the deceased spouse held a life estate, payable on death and transfer on death accounts
  • All life insurance proceeds
  • All IRAs and annuities