How to Disinherit a Spouse: The Truth

Disinheriting a spouse can be a fundamentally simple – but realistically flawed – process: Simply ask your spouse to sign a contract (e.g. a prenup or postnup) wherein they agree to be disinherited — and to receive none of your estate assets. The challenge is obvious: Most of the time when the topic of assets or disinheritance arises it is highly sensitive, and if the marriage is already strained the spouse will refuse to agree to be disinherited. However, there are ways you can still protect your estate assets, generally when working with the aid of a trust attorney.

Can I disinherit a spouse from a will or trust, legally?

Yes, and no. Yes, a spouse can be disinherited. As set forth above, if a spouse legally, contractually agrees to be disinherited they can and likely will be. If they refuse to agree, then you have to pursue other options and negotiations. The laws vary from state to state, but in a community property state like California, your spouse will have a legal right to one-half of the estate assets acquired during the marriage, otherwise known as community property. In addition, the surviving spouse may have a claim for support, for him/herself and/or children of the decedent.

In common law states, an individual may choose to disinherit a spouse in their will. However, the surviving spouse may have a right to seek their rightful inheritance by filing a Right of Election. Generally, they will be legally entitled about one-third to one-half of the estate assets acquired during the marriage, depending on the state.

Where there is no community property right and no Right of Election, a spouse is free to disinherit their spouse in their trust or will.

Why would a spouse agree to be disinherited?

Many reasons, but generally because disinheritance is part of marital negotiations, including divorce negotiations. During these negotiations, one or both spouses may request the other sign a Disinheritance Agreement, simply to show clear intent that none of their assets are intended for their former spouse upon their death. This is a simple legal provision that clarifies the parties’ intent in a divorce.

In other situations, a Negotiated Disinheritance may offer a way for couples who intend to separate to feel they are receiving a “better deal” by agreeing to disinheritance. For example, if the co-owned assets are worth $1,000,000, including a co-owned home, each spouse would be entitled to $500,000 after the home is sold. However, one spouse may agree to receive $450,000 in a lump sum cash payment to avoid waiting for the co-owned home to be sold.

How do I disinherit a spouse? What are the steps?

If you know or feel your spouse will agree to disinheritance, the steps are simple:

• Contact an estate attorney who can explain your options
• Have your estate attorney prepare the necessary documents

How long does it take to legally disinherit a spouse?

Typically, the entire process can take a couple weeks. Here is the general timing:

• Finding, contacting and retaining an estate attorney: 1 week
• Scheduling and meeting with the estate attorney: 1 week
• Time for the estate attorney to prepare your documents: 1 week
• Scheduling and meeting with the estate attorney to execute your documents: 1 day

If my spouse doesn’t agree to disinheritance, how do I protect my estate assets?

There are numerous ways to protect your estate assets for yourself, your children, and heirs. Here are just a few:

• Negotiate a postnuptial agreement
• Negotiate a divorce
• Explicitly disinherit your spouse in your will and trust, understanding that your spouse will still be entitled to his/her community property share or Right of Election share.

What is a postnuptial agreement?

A postnuptial agreement is similar to a prenuptial agreement, but entered into by spouses who are already married. Per Wikipedia:

“A postnuptial agreement is a written agreement executed after a couple gets married, or have entered a civil union, to settle the couple’s affairs and assets in the event of a separation or divorce. It may be “notarized” or acknowledged and may be the subject of the statute of frauds.”

If a married couple is planning a future divorce, or fears a divorce is looming, they may decide to enter into a postnuptial agreement. This agreement dictates how their assets are to be separated in the case of a divorce. In conjunction with an estate plan, the two agreements can further dictate what’s to happen to their assets in the event of their death.

What is a Right of Election?

If a surviving spouse refuses to accept the assets left for them in their deceased spouse’s will, they may choose to petition to receive the assets entitled to them, per state law. This process is referred to as a Right of Election. Per USlegal.com:

“Right of election refers to a surviving spouse’s right to opt for the statutorily defined portion of their deceased spouse’s estate, rather than the provision made for them in the will. Elective shares are governed by state laws, which vary by state.”

While petitioning for a Right of Election is uncommon, it’s an action generally taken only when a surviving spouse is surprised to learn what their deceased spouse did, or did not, leave them in their will. If the surviving spouse feels that it’s to their advantage to receive the assets entitled to them by state law, then they may seek to file a Right of Election.

How long do I have to file a Right of Election?

We recommend you file a Right of Election as soon as possible, after your spouse’s death, if you discover that you have been disinherited in a will. In most states, you have 6 to 24 months after your spouse’s deatch to file your Right of Election. Generally, it’s best to discuss your options with an estate litigation attorney, to ensure that it’s to your advantage to file a Right of Election.

I just found out my deceased spouse disinherited me, can I take legal action?

Yes. In most states, a spouse who has not agreed to be disinherited can take legal action against a decedent who disinherited them in a will or trust. The surviving spouse typically has 6 to 24 months to file a Right of Election with the county probate court. This process allows a surviving spouse to take legal action to get the assets and distributions they are legally entitled to, per state law.

Even in states where no Right of Election exists, the surviving spouse may still wish to seek to contest the will or trust document that disinherits him/her. In these contest cases, it is extremely important that the surviving spouse be aware of and pay close attention to any possible deadlines that may arise – for example the 120 day deadline to contest a trust or trust amendment found in California Probate Code section 16061.7. For more information read: The Guide to 16061.7 Trust Notices

So, if you’re a spouse who recently discovered you were disinherited in a will or trust, it’s extremely important that you act quickly to protect your rights. If you have questions, call RMO Lawyers anytime. The consultation is always free: (424) 320-9444

Do I need an estate litigation attorney to disinherit my spouse?

If you are seeking to disinherit your spouse, you have several options: 1) An estate litigation attorney, 2) An estate planning attorney, or 3) A divorce lawyer.

Do I need an estate litigation attorney near me?

We recommend finding an experienced estate litigation attorney familiar with the county probate court in the county that the spouses live, or deceased spouse lived. For example, if the spouses live in Los Angeles, we recommend working with a estate litigation attorney in Los Angeles. A Los Angeles estate litigation attorney will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.