The Complexities of Spousal Disinheritance in Estate Planning
Did you know that special protections are built into the law to help protect against spousal disinheritance? While state laws differ in the details, a spouse has a claim to a share of their deceased spouse’s estate in every state. However, as estate planning attorneys, we see situations in which a person does not want their spouse to inherit what’s left behind. In some cases, no hard feelings are even involved! It could simply be that their spouse is independently wealthy or that both spouses agreed that what’s left behind should go to children from a previous marriage. No matter the circumstance, it’s important to note that you may not be able to leave your spouse out of your estate plan without a prenuptial agreement or postnuptial agreement. Let’s delve into the details of spousal disinheritance:
A Prenuptial or Postnuptial Agreement Can Override Spousal Inheritance Rights in Many States
Prenuptial and postnuptial agreements are contracts in which each spouse gives up their rights to the other’s assets if there is a divorce or upon their death. A couple signs prenuptial agreements before marriage and postnuptial after marriage. The provisions can be broad and waive all inheritance rights or allow exceptions. For example, it could state that a spouse waives all rights to their partner’s bank accounts but will inherit a vacation home.
People often use these agreements when they want to leave their money and property to children from a previous relationship. Having such documented agreements prevents legal battles that far too often happen between stepparents and stepchildren. However, it’s important to understand that these agreements may be invalid in certain circumstances. Such circumstances include:
- It was signed under pressure
- There wasn’t a full disclosure of assets
- A spouse didn’t have a chance to consult with independent legal counsel
Estate Planning That Does Not Require Spousal Considerations
The law restricts how you can leave assets to others instead of your spouse, but you have more freedom in choosing who manages your affairs. For instance, you don’t have to include your spouse in powers of attorney or healthcare directives.
- A power of attorney allows someone to act on another person’s behalf for financial or medical decisions if they cannot do so.
- An advance directive outlines the healthcare someone wants. It covers life-saving treatments, end-of-life care, and spiritual beliefs about death.
If your spouse is named your power of attorney, it can be changed to someone else. If no power of attorney exists and you can’t manage your affairs, your spouse is usually granted this position. For this reason, it’s imperative to make your wishes known.
Living Together, Planning Alone
People consider limiting their spouse’s inclusion in their estate plan for several reasons. Whatever your reason for wanting to disinherit your spouse, state law may put up hurdles. To discuss spousal disinheritance laws in California, please contact our expert team today.