The relationship between spouses holds a unique significance, this is also the case in the context of estate planning. While you can generally choose to exclude certain individuals from your estate plan—such as parents, siblings, and adult children—special legal protections exist to prevent a spouse from being disinherited.
Regardless of the state in which you reside, it is safe to assume that your spouse is legally entitled to a specified share of your estate upon your death. While the specifics of this protection vary by state, the underlying principle remains consistent: each spouse has a statutory right to claim a portion of the deceased spouse’s assets, including money, property, and income.
There may be legitimate reasons why you would consider leaving your spouse out of your estate plan, and these reasons may not necessarily stem from conflict. For instance, if your spouse is independently wealthy, they might agree that it makes more sense to direct your assets to your children or a charity. However, unless your spouse has voluntarily waived their statutory claim through a prenuptial or postnuptial agreement (which is legally recognized in some states), you may not be able to completely exclude them from your estate plan.
State Laws on Disinheriting a Spouse
No state allows a spouse to be disinherited against their wishes. The amount surviving spouses are legally entitled to receive, however, varies by state and depends on the following key factors:
How the state determines the size of a spouse’s elective share. An elective share, also known as a spousal share, statutory share, or forced share, gives a surviving spouse a fixed portion—typically around one-third to one-half—of the deceased spouse’s estate.
- In some states, the elective share applies only to the probate estate, which comprises accounts and property held solely in the deceased spouse’s name that did not have a beneficiary designation.
- In other states, the elective share applies to the augmented estate. The augmented estate includes the property that makes up the probate estate in addition to accounts and property that have transferred outside of probate by beneficiary designation (e.g., life insurance and retirement accounts), by certain types of joint tenancy ownership, or because they are owned by the decedent’s revocable trust.
- Some state laws also factor in how long the couple was married and whether they had children during their marriage.
- In some states, a surviving spouse may have to petition the court to request their elective share if it was not provided in a will or trust.
Whether the state is a community property state. Nine states—Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin—have community property laws.
- In these states, married couples equally own all accounts and property acquired during marriage prior to a spouse’s death, with some exceptions. Spouses in community property states are automatically entitled to one-half of the property covered by this rule
Prenuptial and Postnuptial Agreements
In some states, prenuptial or postnuptial agreements can override spousal inheritance rights, even in both elective share and community property states.
Prenuptial agreements, which are signed before marriage, and postnuptial agreements, signed after marriage (though not legally recognized in all states), allow each spouse to waive their rights to the other’s accounts and property in the event of divorce or death, including waiving the right to an elective share. These agreements can be broad, covering all of a spouse’s accounts and property, or they can be specific, with certain assets carved out from the waiver.
Such agreements are particularly common when a spouse wishes to ensure that their assets are passed on to children from a previous relationship rather than to their current spouse. A legally enforceable document showing that the disinherited spouse has voluntarily waived their spousal rights can help prevent elective share litigation, which often pits a stepparent against their stepchildren.
However, it’s crucial to understand that a prenuptial or postnuptial agreement can be deemed invalid under certain conditions. This might occur if the agreement was coerced, if it wasn’t executed with full financial disclosure (for example, if one spouse hid assets or liabilities), or if the signing spouse did not have the opportunity to consult with independent legal counsel before agreeing.
Estate Planning That Does Not Require Spousal Considerations
The laws discussed earlier place limits on your ability to leave your assets to someone other than your spouse after your death. However, you have much more flexibility when it comes to deciding who will manage your affairs if you are alive but unable to do so yourself, or who will handle your estate after your passing. Specifically, you are not required to include your spouse in powers of attorney or healthcare directives.
- Power of Attorney: This document designates who can act on your behalf for financial and medical matters. A power of attorney can be structured to take effect only if you become incapacitated, with the input of doctor(s), or it can be effective immediately. It may grant broad authority to the designated person (your agent) to handle all your affairs, or it can be limited to specific tasks you want them to manage.
- Advance Healthcare Directive (Living Will): This directive outlines the type of medical care you wish to receive if you are in a terminal condition and unable to communicate your decisions. It allows you to specify your preferences regarding life-sustaining treatments and other end-of-life matters, including your spiritual beliefs about death.
If your spouse is currently named as your agent under a power of attorney, you have the option to change this designation and appoint someone else. However, if you don’t have a power of attorney and become unable to manage your affairs, your spouse could petition the court to be appointed as your guardian or conservator. In most states, spouses have priority to serve in these roles. If your preferences are not clearly written out in legal documents, a court may very well appoint your spouse to these critical positions.
Living Together, Planning Alone
There are various reasons why you might consider limiting your spouse’s role in your estate plan. Perhaps you lack the desire or energy to pursue a divorce later in life. Or maybe your spouse already has substantial assets, and you’ve mutually agreed to pass your wealth to those who need it more, such as your children from a previous relationship.
Whatever your reason for wanting to disinherit your spouse, state law may restrict your ability to do so completely, even if you update your estate planning documents to reflect your wishes. However, if your spouse is in agreement with your plan, removing them from your estate plan becomes a more straightforward process. It comes down to putting the correct documents in place to legally achieve your goals.
To learn more about spousal disinheritance laws in Colorado and explore your estate planning options, please contact us.
