NOTE: State laws change frequently and the following information may not reflect recent changes in the laws. For current tax or legal advice, please consult with an accountant or an attorney since the information contained in this article is not to be construed as tax or legal advice and is not a substitute for tax or legal advice.
With modern estate planning comes unique estate planning challenges because today's families are different - from same sex and unwed couples raising children, to estranged parents who stay married to raise their children, to married couples who live completely separate lives but nonetheless remain legally married. The latter two groups beg the question - can a spouse be disinherited? While the general rule is if you make a valid Last Will and Testament then you can dictate who gets your property after you die, 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 agreement or postnuptial agreement.
To make matters worse, 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 or not children were born of the marriage, and some laws depend on whether or not 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 received 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 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, and all IRAs and annuities.
This information has been derived from Two Ways to End a Marriage: Divorce or Death, by Laura A. Rosenbury, Utah Law Review, 2005