When it comes to estate planning, many people are surprised to learn the truth about spousal disinheritance – that you cannot simply disinherit your spouse. In most states—including Colorado—spouses are entitled to a portion of your estate by law, even if your will or trust says otherwise. Spousal disinheritance protections can only be avoided if your spouse agrees to waive their inheritance rights through a valid prenuptial or postnuptial agreement, otherwise they may still have a legal claim to your estate after you pass away.
This protection doesn’t extend to other relatives. You are generally free to disinherit siblings, grandchildren, nieces, nephews—and in some cases, even your children. But when it comes to your spouse, the law surrounding spousal disinheritance is designed to prevent economic hardship or unfair surprise.
State Laws Protect Surviving Spouses
There is no one-size-fits-all rule across the United States. Each state has its own approach to protecting surviving spouses, often through:
- Elective share statutes
- Community property laws
- Augmented estate calculations
These laws determine how much of the deceased spouse’s estate must be made available to the surviving spouse, and they may account for more than just probate assets, impacting spousal disinheritance in significant ways.
For example, Florida allows a surviving spouse to claim 30% of the elective estate, which includes:
- Probate assets
- Payable-on-death (POD) and transfer-on-death (TOD) accounts
- Joint accounts
- Assets in revocable trusts
- Certain insurance and retirement accounts
Debts and liabilities of the deceased spouse are deducted from the total elective estate.
Factors that may affect how much a surviving spouse can claim include:
- The length of the marriage
- Whether the couple had children together
- The value and nature of the deceased spouse’s assets
- Whether any assets were already inherited through nonprobate designations
- The structure of any marital agreements
Timing Is Critical for Disinherited Spouses
Every state sets a deadline for surviving spouses to assert their inheritance rights, which is vital to addressing spousal disinheritance. That window could be as short as a few months, and if you miss it, you may permanently lose your legal claim—even if you were entitled to a significant portion of the estate.
If your spouse passes away and their estate plan appears to exclude you, don’t wait. Speak with a probate lawyer in Greenwood Village or your local jurisdiction to evaluate your options.
Why Spousal Protection Matters in Estate Planning
As an estate planning attorney practicing in Greenwood Village, I often counsel clients who don’t realize how strict spousal inheritance protections can be, especially regarding spousal disinheritance. Whether you’re drafting a plan or reviewing one, understanding these rules is essential.
If you want to:
- Protect your spouse and avoid confusion
- Ensure clarity about who receives what
- Minimize potential conflict or litigation
…it’s important to work with a professional who understands your state’s unique rules and how to navigate them.
Plan Thoughtfully—Whether You’re Married or Not
Disinheriting a spouse isn’t impossible—but it requires proactive legal planning and mutual agreement to withstand legal scrutiny. If you don’t take the right legal steps to manage spousal disinheritance, your wishes may be overridden by state law. On the other hand, if you’re the surviving spouse who has been unexpectedly disinherited, act quickly to preserve your rights.
At Premier Legacy Law, we help couples and individuals across Colorado create estate plans that are legally sound, emotionally thoughtful, and future-focused.
Contact us today to schedule a consultation and ensure your plan reflects your intentions while honoring the legal protections in place.
