While it is not impossible to disinherit a spouse, it is generally not as simple as just leaving them out of your will. Your spouse can still be left with inheritance rights.
Spousal Inheritance Rights
Most states have laws in place that protect the inheritance rights of spouses, referred to as “community property laws” or “elective share laws.” Because of this, it is difficult to disinherit your spouse completely by simply leaving them out of your will because they are still left with certain rights. Florida is an “Elective Share” state.
- Community Property State (e.g., California)
- Your spouse will have a legal right to one-half of the estate assets acquired during the marriage regardless of will, 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.
- Elective Share Law States (Florida)
- The surviving spouse may have a legal right to seek their rightful inheritance by filing a Right of Election, regardless of will. Generally, they will be legally entitled to about one-third to one-half of the estate assets acquired during the marriage, depending on the state. Many states require the marriage to have lasted a certain number of years for the elective share to be claimed, or adjust the share based on the length of the marriage, and the presence of minor children.
These statutory rights above can trump an otherwise valid disinheritance provision of a will or trust. However, it is possible for a spouse to waive these statutory rights in a pre-nuptial or post-nuptial agreement. In these agreements, you can waive certain rights provided through death or divorce, and you can draft language as to “who gets what” in those two untimely events. The main difference between a pre-nuptial agreement and a post-nuptial agreement is that a prenuptial agreement is signed before a couple’s marriage; a postnuptial agreement is signed after the marriage.
How Do I Disinherit my Spouse?
If you know or feel that your spouse will agree to a pre-nuptial or post-nuptial agreement, you should contact an estate attorney who can explain your options and prepare necessary documents. The challenge, obviously, is that your spouse will probably refuse to agree to be disinherited.
If you feel or know that your spouse will not agree to a pre-nuptial or post-nuptial agreement, you can, among other things, try negotiating a divorce, or you can explicitly disinherit your spouse in your will and trust, understanding that your spouse will still be entitled to his/her elective share (in Florida). If you do not live in a community property state or in a state that recognizes elective share, you are free to disinherit your spouse simply in your trust or will.
Since many marital agreements are discouraged because they may contain provisions that violate public policies or state laws, it is vital to work with a skilled attorney when drafting and signing an agreement to disinherit your spouse.
