Do I Have to Leave Possessions to My Spouse in My Will?

Some spouses might specifically write out their partner in their will. What the enduring partner is entitled to depends on state law, where the property is located and whether any valid agreements exist between the celebrations.

Right to Inheritance

For the most part, a partner has the legal right to inherit property from his/her spouse whether the partner has a will. The amount that a spouse is entitled to get depends upon a number of elements, such as:

Community Property States

Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington and Wisconsin are community property states. Tennessee and Alaska permit couples to decide in to community property standards. These states factor that spouses each have an equal ownership interest in the assets earned or acquired throughout the marriage. In these states, spouses are generally permitted to get half of the community property in the decedent’s will. Community property includes the properties and earnings earned throughout the marriage. Property that was owned before the marital relationship, gifts or inheritances are left out from community property. Different property can be designated in a will or other document to go to another recipient.

Common Law Property States

The other states are common law property states. In these states, couples are allowed to own separate property even if it was gotten during the marital relationship. Ownership might be based upon a title, deed or other file. However, common law property states do not allow a spouse to totally disinherit the surviving partner, even if his or her estate is mainly consisted of different property.

Laws of Intestacy

When a partner passes away without a will, the laws of intestacy apply. These are the default guidelines that enter play when a person does not have a will. The laws figure out which loved ones stand to inherit and to what level. If the decedent died and had no kids, his/her spouse may be entitled to all or a big portion of the assets. If there were children, the partner might be entitled to a smaller sized part of the estate. Often, partners are entitled to a minimum of one-third of the assets of the estate. The quantity of the estate that the spouse is entitled to get might depend on the length of the marriage.

Elective Share

If the surviving partner does not like the degree of property allowed in the will, he or she can usually submit a claim in court to get his or her elective share. The optional share is generally the amount that would have been provided under the laws of intestacy. The making it through partner is normally entitled to this part of the estate.

Legal Agreements

Spouses may accept be excluded from a will in a legitimate prenuptial or marital arrangement. These arrangements might define that a partner will not have community property or marital property rights in specific property that is obtained. A making it through spouse may be able to challenge such an agreement after the decedent’s death. He or she might argue that the arrangement was essentially unreasonable. A court can take a look at the agreement from how it was obtained procedurally in addition to evaluate what the contract calls for of a substantive nature. If the court discovers the contract is unreasonable, it might not be imposed and the spouse might then be entitled to the optional share.

Contact an Estate Planning Lawyer for Help

If you wish to find out about how to disinherit a partner or others from your will, get in touch with an experienced estate planning lawyer for support. He or she can explain what is and is not possible under your state laws.

Written by Shirley Allen