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Can I leave my spouse out of my will?

On Behalf of | Mar 28, 2023 | Probate Litigation |

When creating your estate plan, you want to ensure you express your wishes clearly. There should be no doubt about what you intended to do and want to happen after your death.

However, even if you state everything clearly and concisely, there is a chance that not everything you want will go as planned during probate. One such issue is disinheriting your spouse.

The law says no

Total disinheritance occurs when you leave someone out of your will who should, by law, have a claim to your estate. When it comes to inheritance law, a spouse is at the top. If you leave your spouse out of the will or attempt total disinheritance, there will be issues in probate because the law protects spouses from this.

The potential results

If you leave your spouse out of your will, what will likely happen during probate is the court will give him or her a percentage of the estate. Your spouse has a right to ask for an elective share, which is usually about 30 percent of the estate. Your spouse may also be able to get an allowance from the estate during the probate process.

The law does allow your spouse to waive the inheritance rights. This may happen if you and your spouse were in agreement about leaving him or her out of your will. Perhaps your spouse has the means to take care of him or herself financially and you decided to leave your estate to your children. In any case, it is important to understand that your spouse has a claim no matter what you put in your will.