Disinheriting the spouse is among one of the most sensitive and complex issues in estate planning. Many people believe that they have full control over what happens to their assets upon their death, but in fact, most states have laws that prevent a surviving spouse from being totally disinherited. This blog will elaborate on some complexities one might face if they consider disinheriting the spouse, some legal challenges that may occur in court, and other possible alternatives one might wish to consider.
Problems Faced When Disinheriting a Spouse
According to myth, all one has to do to avoid having the spouse outlive them into your estate is omit the spouse from the will. However, the majority of the states have specific laws governing inheritance by and of surviving spouses as well as disinheritance. This protection sometimes manifests in terms of “elective share” or “community property” and requires that no spouse be allowed to be wholly disinherited against his or her interest.
State-Specific Laws and Variations
The collection of laws on spousal inheritance rights differs widely among most states. Determining the right of a surviving spouse to inherit may be based upon factors such as the length of the marriage, whether children were born of the marriage, the size of the deceased spouse’s probate estate and the concept of an “augmented estate” including both the probate and non-probate assets.
For example, Pennsylvania provides for a statutory right of a surviving spouse to an “elective share” that is equal to one-third of the elective estate of the deceased spouse. This includes not only probate assets but certain non-probate assets such as joint accounts and retirement funds. The surviving spouse has six months after their spouse’s death to be able to claim their Elective Share is they were left less than one-third of the estate through the Orphans’ Court* in the county in which the estate went through probate.
Legal Means of Disinheriting a Spouse
While it is difficult in most states to completely disinherit a spouse, there are some legal options that may be pursued which limit a spouse’s inheritance or provide for their agreement to be disinherited.
Prenuptial and Postnuptial Agreements
One of the most successful ways to disinherit a spouse is through a prenuptial or postnuptial agreement. These legally binding documents allow couples to agree on how assets will be distributed in the event of death or divorce. If a spouse has signed such an agreement waiving their inheritance rights, courts are more likely to uphold the deceased spouse’s wishes to disinherit them.
Negotiated Disinheritance
In some cases, spouses may agree to disinheritance as part of marital negotiations or divorce proceedings. This could involve one spouse receiving a lump sum payment or other assets in exchange for agreeing to be disinherited. Such agreements should always be formalized in writing and reviewed by legal professionals to ensure their validity.
Alternatives to Complete Disinheritance
If you want to limit your spouse’s inheritance but do not want to completely disinherit them, the following are a few options to consider:
Trusts and Non-Probate Assets
Assets held in certain types of trusts or designated as non-probate assets may not be subject to elective share laws. By placing assets in a properly structured trust, you may be able to control how they are distributed after your death, potentially limiting your spouse’s access to them.
Life Insurance and Retirement Accounts
Another way to leave assets outside of a marriage is by naming beneficiaries that are not one’s spouse for life insurance policies and retirement accounts. In some cases, however, spousal consent may be sought or even be legally mandated to name a non-spouse beneficiary for certain retirement accounts.
Law and Ethics
As far as disinheriting a spouse goes, there are the following legal and ethical considerations:
Time Limits on Spousal Claims
Many spouses have limited time to make their claims for inheritance. The length of time to make these claims varies by state and may be as few as several months or as many as several years. These deadlines are critical not only for the creator of the estate plan but also for the spouse who may be disinherited.
Potential for Legal Challenges
Disinheriting a spouse without their consent usually leads to expensive and time-consuming litigation. Even with a prenuptial or postnuptial agreement, a disinherited spouse may contest the will or trust, especially if they feel the agreement was unfair or signed under duress.
Ethical and Family Considerations
Apart from the legalities, disinheriting a spouse can have overwhelming emotional and familial repercussions. Besides, one has to consider the relationships with the family members, especially when there are children. Sometimes, mediation or family counseling may be helpful for the purpose of addressing underlying issues leading to a desire to disinherit a spouse. The Importance of Professional Guidance
In this regard, disinheriting a spouse is complex, and therefore one should seek professional legal advice. A seasoned estate planning attorney will make you aware of the specific state laws and help you weigh your options to formulate a lawfully tenable estate plan that suits your purpose and minimizes the likelihood of litigation down the road.
Conclusion
Disinheriting a spouse is an extremely complex and challenging process that requires thorough thought and professional legal guidance. Although it may not be possible to fully disinherit a spouse in many situations, there are legal strategies that can help you control the distribution of your assets and limit a spouse’s inheritance if necessary. You can create an estate plan that best reflects your wishes while navigating the legal protections afforded to surviving spouses by understanding the laws in your state, exploring alternatives, and working with experienced professionals.
Remember, estate planning is not just about the distribution of assets; it’s about your legacy and taking care of your loved ones as you see fit. Whether you consider disinheriting a spouse or simply want to create an extensive estate plan, consulting a knowledgeable estate planning attorney marks the first step toward achieving your goals and protecting your interests.
The compassionate team at Antanavage Farbiarz is here to help. Reach out today to learn how our seasoned attorneys can assist you when it comes to updating your estate and disinheriting a spouse. Our family is here for your family – give us a call at (610) 562-2000 or click here to schedule a consultation.
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