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Can a Spouse be Disinherited?

Tara A. Conti, CFP®

The short answer is that most states have legislation in place so a legally married spouse cannot be completely disinherited (intentionally or unintentionally) but you must take timely action to claim this right.

The writing of this article was motivated due to a friend of mine who said their 80 year old grandmother was disinherited when her husband died. Even though it was a second marriage for both of them, they had lived together and had been married for more than 10 years.   Everything in the will went to her husband’s family and my friend’s grandmother was kicked out of her home with nothing to her name. 

My friend’s family did not know her rights and her options at the time.  I wish they did and so hopefully this article will help some others become aware of the choices should a similar situation arise.

Estate Planning laws vary from state to state and are complex.  My intention here is to keep things simple and give the highlights so you know enough to ask questions and talk to an Estate Planning attorney for the specific options and details.  

Spousal Right of Election

Most states have legislation called a “spousal right of election” which allows a spouse to ignore the will and elect to receive the “elective share” of the decedent spouse’s “augmented estate.”  The augmented estate includes both the probate and non-probate estate.  In layman’s terms the augmented estate includes everything the person owns.  There are some exceptions to what would be included in the augmented estate.

This legislation has changed periodically to prevent people from utilizing loop holes in the law to intentionally disinherit their spouse so they did not get anything after they passed away. 

For New Jersey and Pennsylvania the elective share is 1/3 of the net augmented estate. 

The Options and Criteria

The surviving spouse has a choice of 1) accepting the provisions of the deceased spouse’s will or 2) select to receive their elective share and go against the will.  Action must be taken to claim the elective share.  The election must be made in writing within 6 months of the issuance of Letters Testamentary or Letters of Administration and no more than 2 years from the spouse’s date of death.

Exceptions to the Spousal Right of Election

A spouse’s right of election can be disallowed with a pre-existing written agreement between the spouses which waives this right.  Examples of some of these are a pre-nuptial, post nuptial or separation agreement.

In some states if a person dies without a will (intestate), the elective share can depend on whether or not there are surviving children of the deceased.  If there are no children, the spouse is entitled to 50% as an elective share.  If there are children, the spouse’s share is 30%.

With second marriages so common many want to make sure their estate goes to their own children and may unintentionally disinherit their current spouse.  There are methods (Credit Shelter or Q-TIP Trusts) to protect the estate, provide for a surviving spouse yet limit access and guarantee that the remainder of the estate goes to the decedent’s children. 

The rules around protecting the rights of a disinherited spouse are complex and vary from state to state.  The objective of this article is to highlight for you that this right exists.  You should consult with an experienced Estate Planning attorney to find out which options best suit your particular situation. 

If you need a recommendation for a good Estate Planning attorney in your area, please give us a call at 609-730-9222.

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