Leaving a Spouse Out of the Will

Spouses may be named as beneficiaries in a will, and rules safeguard the surviving spouse from being disinherited. An exception is a Premarital Agreement.

In most cases, spouses are the primary beneficiaries in a will and testament. Yet, all states have laws that prevent the surviving spouse from being disinherited. Regardless of the terms of the final will and testament, some enable the spouse to take an elective portion of the inheritance, generally one-third. A Premarital or Prenuptial Agreement may be used to disinherit a spouse, but the courts are likely to rigorously analyze such arrangements to ensure that the agreement was executed in good faith and with full disclosure of assets.

If you do not wish to leave property to your spouse, be aware that many states “protect” couples by allowing a spouse to inherit a piece of the estate even if the final will and testament does not provision for the spouse. Notwithstanding the terms of your will, you should check with a lawyer about your spouse’s legal rights to inherit property from your estate.

A premarital agreement executed by you and your spouse before to your marriage (known as a Premarital Agreement) may allow you to exclude your spouse from your will. It is possible to restrict the property that you leave to a spouse by establishing trusts for the benefit of your spouse that come into existence after your death. When considering what kind of trust is ideal for your situation, examine the following factors:

The risk that your spouse’s requirements may change in the future
The way of life to which your spouse is accustomed Your spouse’s capacity to pay for his or her own requirements
Your spouse’s capacity to handle the trust assets
The likelihood of your spouse remarrying, as well as the impact such marriage may have on your children or other dependents.