Disinheriting a Spouse: Can I Leave My Spouse Out of My Estate Plan?

The relationship between spouses is special in all contexts, not the least of which is the estate planning context. In many instances, you can exclude people from your estate plan, including your parents, siblings, and adult children. But there are special protections built into the law that may prevent you from disinheriting a spouse.

No matter which state you live in, unless you have a premarital agreement, your surviving spouse is entitled to a certain share of property at your death. While state laws vary on the particulars of this protection, they are aligned on the basic premise that each spouse has a statutory claim to a portion of the deceased spouse’s money, property, and income.

You may have a legitimate reason for wanting to leave your spouse out of your estate plan. That reason may not even be related to bad blood. For example, your spouse may be independently wealthy and may agree that it would be better to leave your accounts and property to your children or a charity. However, unless your spouse has waived their statutory claim in a prenuptial agreement or postnuptial agreement (if legally recognized in your state), you may not be able to leave your spouse out of your estate plan entirely.

State Laws on Disinheriting a Spouse

No state allows a spouse to be disinherited against their wishes. The amount surviving spouses are legally entitled to receive, however, varies by state and depends on the following key factors:

• How the state determines the size of a spouse’s elective share. An elective share, also known as a spousal share, statutory share, or forced share, gives a surviving spouse a fixed portion—typically around one-third to one-half—of the deceased spouse’s
  • In some states, the elective share applies only to the probate estate, which comprises accounts and property held solely in the deceased spouse’s name that did not have a beneficiary designation.
  • In other states, the elective share applies to the augmented estate. The augmented estate includes the property that makes up the probate estate in addition to accounts and property that have transferred outside of probate by beneficiary designation (e.g., life insurance and retirement accounts), by certain types of joint tenancy ownership, or because they are owned by the decedent’s revocable trust. This is the situation in Florida.
  • Some state laws also factor in how long the couple was married and whether they had children during their marriage.
  • In some states, a surviving spouse may have to petition the court to request their elective share if it was not provided in a will or trust. This is the situation in Florida.
• Whether the state is a community property state. Nine states—Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin—have community property laws.
  • In these states, married couples equally own all accounts and property acquired during marriage prior to a spouse’s death, with some exceptions. Spouses in community property states are automatically entitled to one-half of the property covered by this rule.
    • This means that everything that is earned during the marriage, such as your income, is community property. Also if you buy real property during the marriage, that is presumed to be community property.
    • The surviving spouse is entitled to that person's one-half share of the community property.
    • This applies no matter how the asset is titled. Even if the real property is in only the deceased's spouse's name, it is presumed to be community property.
    • Like any presumptions, this too is rebuttable. This will cost money during the probate process.

Prenuptial and Postnuptial Agreements and Disinheriting a Spouse

In some states, a prenuptial or postnuptial agreement can override spousal inheritance rights in both elective share and community property states. These can be the first step in disinheriting a spouse.

Prenuptial agreements (signed before a couple is married) and postnuptial agreements (signed after marriage, but not legally recognized in all states) are contracts in which each spouse gives up their rights to the other spouse’s accounts and property in the event of divorce or upon their death (which includes a waiver of their right to the elective share). The provisions can be general and can waive inheritance rights to all of their spouse’s accounts and property, or they can include carve outs for some accounts or property.

These agreements are common when a spouse wants to pass their money and property on to children from a prior relationship rather than to their current spouse. Having a legally enforceable document showing that the disinherited spouse has waived their spousal rights can help avoid elective share litigation, which research has shown often pits a stepparent against their former stepchildren.

It is important to note, however, that, regardless of how it is structured, the pre- or postnuptial agreement can be ruled invalid under certain circumstances, such as when it is coerced, not executed with full disclosure (e.g., one spouse hid assets or liabilities), or signed by a spouse who did not have the opportunity to consult with proper, independent legal representation prior to the time of signing.

Estate Planning That Does Not Require Spousal Considerations

The laws outlined above limit your ability to leave your money and property at your death to people other than your spouse. You have far more latitude to exclude your spouse, however, when it comes to selecting who manages your affairs when you are alive but cannot manage them yourself or who winds down your affairs after your death. Namely, you do not have to include your spouse in powers of attorney and healthcare directives.

• A power of attorney addresses who can act on your behalf for financial and medical matters. In some cases, a power of attorney takes effect only if you are unable to manage your affairs (a springing power); at other times, it can take effect immediately. A power of attorney can be general and grant another person broad authority to handle your affairs for you, or it can describe only those specific matters you want another person to handle on your behalf.
• An advance directive (also called a living will) denotes the types of healthcare you would like to receive at end of life and cannot communicate your wishes. It allows you to specify your wishes related to life-saving treatments and other end-of-life matters.

If your spouse is currently named as your power of attorney, you can change the designated agent on the document and give this power to a different individual. If you do not have a power of attorney and are unable to manage your affairs, your spouse could petition the court to be appointed as your guardian or conservator, and spouses have priority to be appointed to such positions under most state laws. If the court does not know your wishes, it could very well allow your spouse to act in these very important roles.

Living Together, Planning Alone

There are several instances in which you may consider limiting your spouse’s inclusion in your estate plan or disinheriting your spouse. Maybe you do not have the heart (or the energy) to divorce your spouse later in life. Perhaps your spouse already has significant money and property of their own, and you have agreed to pass your money and property to those who need it more, such as your children from a prior relationship.

Whatever your reason for wanting to disinherit your spouse, state law may prevent you from doing so entirely, even if you modify your estate planning documents to reflect your wishes. If your spouse is on board with your plan, removing a spouse from an estate plan is easier.

To discuss spousal disinheritance laws in your state and what estate planning you may be able to do on your own, please reach out to our attorney.