Can I Leave My Spouse Out of My Will?

For various reasons, people often create a Last Will and Testament that intentionally leaves out their surviving spouse. In this case, it is the testator’s intention to disinherit their spouse. Is this legal? Can they do this?

The short answers are yes, it is legal; and, yes, they can do this. That being said, there are certain steps the surviving spouse can take to get around the terms of the Will and still get a piece of the testator’s estate.

Modern estate planning presents some unique challenges based on the changing dynamics of many modern families. Gone are the days of the primarily traditional family unit, as many families are blended, involve second or subsequent marriages, same-sex couples raising children, and unwed domestic partners. Often, we see estranged parents who stay married for the sole purpose of raising their children, married couples who live completely separate lives but for one reason or another stay married, and on and on.

Can I Legally Disinherit My Spouse?

What if you are legally married but wish to disinherit your spouse for one reason or another? Perhaps you are estranged, or headed for a divorce, or are on a second marriage and your new spouse is financially very well off. The general rule is that if you make a valid Will, properly written and signed by you and your witnesses, then you can dictate who gets your stuff after you die. There is, however, a caveat to this rule in that you can’t intentionally disinherit your spouse unless they agree in writing to be disinherited or through a valid prenuptial agreement.

This caveat is the law in every state in the U.S. and the District of Columbia, where a surviving spouse is entitled to a portion of their deceased spouse’s estate, regardless of what is says in the Will. Of course, to make things more complicated, the portion of the estate to which the surviving spouse is entitled varies depending on the state, who the surviving heirs are, and sometimes how long the marriage lasted.

What Can I Do if My Spouse Leaves Me Out of the Will?

When your spouse signs a Last Will and Testament leaving you out and tries to disinherit you, the Will itself is not deemed invalid. Instead, state law allows you to file for an elective share of the estate, depending on the state where your spouse lives. In other words, you are not challenging whether the will is legally valid, but rather whether you should be entitled to a portion of the estate regardless of what the Will states. You are electing to take a share of your spouse’s assets by filing with the appropriate court a request for your legal share.

To What Amount is the Surviving Spouse Entitled?

The answer to this question depends on the state, and in the DMV, the answer varies wildly. You should consult with an experienced estate planning attorney if you are facing this issue.

Elective Share in Maryland

Under Maryland law, a surviving spouse is entitled to receive 33% of the net estate value if there are surviving decedents (such as children or grandchildren), and 50% of the “net estate” value if there are no surviving decedents. The definition of net estate is a little murky. While it is clear that certain expenses are not included in the net estate, such as funeral expenses, certain non-probate transfers (such as trusts) may also be a part of the net estate, depending on the circumstances.

Elective Share in the District of Columbia

Pursuant to D.C. law, a surviving spouse or domestic partner may elect to receive the amount he or she would have taken if the decedent had died without a will, but not in excess of one-half of the net estate devised by will. The District of Columbia limits the net estate to the decedent’s probate estate, not including property from trusts and property transferred to beneficiaries (for example, a 401k plan).

Elective Share in Virginia

In Virginia, a surviving spouse has a right to claim a percentage of 1/2 of the value of the property included in the augmented estate. The augmented estate includes: (1) the decedent’s net probate estate; (2) the decedent’s non-probate transfers to others; (3) the decedent’s non-probate transfers to the surviving spouse; and (4) the surviving spouse’s property and non-probate transfers to others.  This means that even the surviving spouse’s property is included in the calculation of the augmented estate. The law includes ALL the property of the marriage, including property from revocable trusts, property transferred upon death, and property passed to named beneficiaries, not just that property in the probate estate. The percentage amount also varies depending on the length of the marriage. For example, a surviving spouse that was married for less than one year is going to receive less than someone who was married for twenty years.

Contact a Wayside Legal Estate Planning Attorney

There are many factors that affect a surviving spouse’s ability to file for and receive an elective share of a decedent’s estate. Wayside Legal LLC is an award-winning law firm located in North Bethesda, Maryland, with experience handling estate planning matters in Maryland, D.C., and Virginia. If you are facing a situation where you need assistance with filing for an elective share or your spouse’s estate, contact a Wayside Legal attorney today for a consultation to discuss your specific estate planning needs.