While many Americans want to use their will to see that their spouse is financially cared for, others don't want to leave money to that spouse. You may fall into the latter category due to estrangement, ongoing divorce negotiations, a strained relationship, or your spouse's financial situation. But can you leave your spouse out of your will? The answer is tricky. Here are five steps to success.
1. Learn Your State Rules
Each state adopts its own inheritance rules. The first step is to learn what your state requires regarding spousal inheritance. Community property states often mandate that the spouse inherits half of the deceased person's estate. Common law states may give them 1/3 of an estate, 1/2 of it, or some other minimum requirement. You must craft your estate plans with these rules in mind.
2. Negotiate With the Spouse
The best way to disinherit your spouse in nearly all states is to get them to agree to a disinheritance agreement. If they are financially secure or agree with your reasons for disinheritance, this may be as simple as drawing up a legal contract between you two. However, you may need to negotiate to get them to sign. This is harder, but it protects your estate.
3. Use Other Legal Vehicles
A will isn't the only way to leave assets upon your death. Trusts, for example, separate specific assets from your estate and transfer these outside of probate court. The right trust could protect these assets from being given to your spouse. Similarly, beneficiary designations on accounts allow money to be inherited outside the probate process.
4. Use Clear, Valid Language
If you can leave your spouse little or nothing per state rules, do not simply omit them from your will. You will want to take proactive, clear action within it to stipulate that you are disinheriting or limiting your spouse's inheritance. Use wording required by your state's probate rules to communicate your intentions unambiguously. An attorney should craft this language or check it after being drafted.
5. Embrace the Minimums
Many people will find that they cannot completely disinherit their spouse. Others may decide that the potential for conflict over this action makes it unwise. If you must leave your spouse something, don't waste time being upset over it. Use other methods to make up for that portion. For instance, a life insurance policy might pay them so that you can leave other assets to your children, grandchildren, or a charity. Everyone walks away with something.
Where to Start
Want to know your state's approach to spousal disinheritance? Need help minimizing what your spouse receives if you die? Start by meeting with a wills and estate attorney in your state today. For more information, contact a wills attorney near you.