So, you want to disinherit your spouse? Maybe you can, maybe you can’t. 

In most of the United States, it is not easy to disinherit your spouse. The same is not true for other family members. Most of the time you can use your estate plan to disinherit brothers, sisters, nieces, nephews or even your very own children and grandchildren.
On the other hand, in most of the United States and the District of Columbia, you cannot disinherit your spouse. You can only leave your spouse nothing if your spouse agrees to it in a marital contract called a prenuptial or postnuptial agreement.

Look Out: Spousal Share Laws are Different in Each State. 

Each state has its own set of rules that govern what a surviving spouse is entitled to inherit from the deceased spouse’s estate. Sometimes there are “community property” laws. Sometimes there are “elective share” laws. These can also be called “forced share” laws. It all depends on where you live or where you own property. These laws vary a lot: in some states, including South Dakota, the surviving spouse’s right to inherit is based on how long the couple was married.

  • In some states the surviving spouse’s right to inherit is based on how long the couple was married.
  • In some states the surviving spouse’s rights are based on whether or not there were children born to the marriage.
  • In other states the surviving spouses rights inherit based on the value of assets included in the deceased spouse’s probate estate.
  • In some states, the surviving spouse’s rights to inherit is based on what is called an “augmented estate,” which includes the deceased spouse’s probate estate and non-probate assets.

In South Dakota, it is a combination of the first and the last where first we add up all of the probate and non-probate assets and then determine the surviving spouse percentage share based on the number of years the parties were married.
Another example is Florida, where the surviving spouse has the option to receive a portion of their deceased spouse’s estate called the “elective share.” This elective share is equal to 30% of the deceased spouse’s “elective estate,” which includes the value of the deceased spouse’s probate estate and certain non-probate assets such as payable on death and transfer on death accounts, joint accounts, the net-surrender value of life insurance, property held in a revocable living trust, and annuities and other types of retirement accounts reduced by the deceased spouse’s debts (this is an example of the last category described above).
Additionally, state laws also vary a great deal regarding the time limit a surviving spouse has to seek their inheritance rights, which can range anywhere from a few months to a few years.

If You Are a Disinherited Spouse You Need to Act Quickly!

If your spouse has attempted to disinherit you, you must seek legal advice as soon as possible before state law bars you from enforcing your rights. Only an experienced estate planning attorney can help you weigh all of your options and protect your interests as a surviving spouse. If you or anyone you know needs to talk about this, please give me a call and I would be glad to discuss it with you.
Doug Thesenvitz