Believe it or not, in the U.S. it isn’t easy to disinherit your spouse. But the same is not true for other family members — generally, you can use your estate plan to disinherit your brothers and sisters, your nieces and nephews, or even your very own children and grandchildren.

However, in the majority of states and the District of Columbia, you can’t intentionally disinherit your spouse unless your spouse actually agrees to receive nothing from your estate in a Prenuptial or Postnuptial Agreement.

Beware: Spousal Disinheritance Laws Vary Widely From State to State

Unfortunately, there isn’t a single set of rules that governs what a surviving spouse is entitled to inherit. Instead, the laws governing spousal inheritance rights — referred to as “community property laws” or “elective share laws” depending on the state where you live or own property — vary widely:

• In some states, the surviving spouse’s right to inherit is based on how long the couple was married.
• In other states, the surviving spouse’s right to inherit is based on whether or not children were born of the marriage.
• In still other states, the surviving spouse’s right to inherit is based on the value of assets included in the deceased spouse’s probate estate.
• And, finally, in some states, the surviving spouse’s right to inherit is based on an “augmented estate,” which includes the deceased spouse’s probate estate and non-probate assets.

For example, in Florida a surviving spouse has the option to receive a portion of their deceased spouse’s estate called the “elective share.” This share is equal to 30% of the deceased spouse’s “elective estate,” which includes the value of the deceased spouse’s probate estate and certain non-probate assets such as payable on death and transfer on death accounts, joint accounts, the net cash surrender value of life insurance, property held in a revocable living trust, and annuities and other types of retirement accounts, reduced by the deceased spouse’s debts. (This is an example of the last category described above.)

Texas law

In Texas, a surviving spouse has several rights, regardless of the contents of the will:

• A surviving spouse is entitled to a life estate in the homestead, even if it is the separate property of the deceased spouse and it was left to someone else.
• The surviving spouse is entitled to be reimbursed for any community funds expended on the deceased spouse’s separate property, or for any of the surviving spouse’s separate funds that were expended on the couple’s community property or the deceased spouse’s separate property.
• The surviving spouse is also entitled to an allowance equal to one year of living expenses.
• Additionally, if the deceased spouse has a retirement plan governed by ERISA, the surviving spouse is entitled to the proceeds of that plan unless he or she has signed a waiver during the marriage.

In addition, state laws vary widely regarding the time limit a surviving spouse has to seek their inheritance rights, which can range anywhere from a few months to a few years.

Disinherited Spouses Need to Act Quickly!

If your spouse has attempted to disinherit you, you must seek legal advice as soon as possible before state law bars you from enforcing your rights. Only an experienced estate planning attorney can help you weigh all of your options and protect your interests as a surviving spouse.

Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information and to learn about our firm, please contact us.