During the estate planning process, you will have to make personal decisions about who will inherit your property. Also, consider how you want to divide your assets amongst your various beneficiaries. However, what happens if you and your spouse are estranged? With the complexity of modern relationships, people limit their spouse's inheritance in their will. This is particularly true if they have children from a previous relationship that they want to be their primary beneficiaries. Yet, this raises the question of whether or not you can completely disinherit a spouse. To help you better understand your options if you wish to limit the extent to which your spouse benefits from your estate, keep reading for a look at answers to the most frequently asked questions we receive about disinheriting spouses.
Can I Disinherit My Spouse?
While many people believe disinheriting a spouse is as simple as leaving them out of their will/trust and other estate planning documents, this is not the case. In fact, in most states, you can not completely disinherit a spouse unless they agree in writing to be disinherited. Even if you decide not to include them in your will or trust, your spouse may still be legally entitled to a portion of your assets. Laws on what a spouse is legally entitled to upon your death vary greatly from one state to the next; however, if you live in a community property state like Texas, even a "disinherited" spouse will receive a significant portion of your assets.
How Does Spousal Inheritance Work in the Community Property States?
As you may already be aware, Texas is what is considered a community property state. If you live in a community property state (at this time there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), property acquired during your marriage belongs to both you and your spouse equally regardless of who earned the income or whose name is on the deed/title. For instance, if you purchased a car during your marriage using your money and the title is only in your name, this would still be considered community property.
Thusly, if you live in a community property state and try to disinherit your spouse by leaving them out of your will, they will still be entitled to half of all property and assets acquired during your marriage. However, you are free to distribute your half of community property as you see fit in your will/trust, and your spouse is not entitled to any separate assets that you acquired before your marriage. In fact, your spouse does not have any claim to assets deemed separate property, and you are free to bequeath these assets as you see fit.
What Happens to My Half of Our Home?
Should you choose to disinherit your spouse in Texas and leave your separate property and your half of community property to someone other than your spouse in your will, your assets will be distributed in probate court in accordance with the terms of your will, overseen by a judge. However, you may find yourself wondering what will happen to the home you and your spouse shared if you leave your half to someone other than your spouse. If you live in Texas, the answer is pretty simple, as the surviving spouse has homestead rights.
This gives a surviving spouse the right to continue living in the marital home, even if you tried to give the home to someone else in your will. Homestead rights allow a surviving spouse to continue living in their home after their spouse's death without having to worry about being forced to move. Once both spouses pass, then the property will be distributed in accordance with both party's wills.
Will Disinheriting a Spouse Increase the Likelihood of Challenges?
When deciding how to distribute your assets within your estate plan, it is important to consider the impact that doing so could have. The fact is that a disinherited spouse is much more likely to challenge your will and contest its validity than one who at least received some kind of inheritance, particularly if they were not aware of your decision ahead of time and felt blindsided. If your spouse contests you will, this could cause your estate to be tied up in probate court for a long time, which could cost your estate a great deal of money. Some people then choose to try to reduce the likelihood of their estate being challenged by including a small inheritance to their spouse in their will and including a clause in their estate plan denying inheritance to anyone who unsuccessfully challenges the will.
Of course, discussing your decision with your spouse before your death can also help reduce the likelihood that they will contest your will. Either way, if you plan on disinheriting your spouse, or you plan to leave them very little in your will, you should consider working with an estate planning attorney to learn about steps that you can take to protect your estate from potential challenges.
Partner With an Experienced Texas Estate Planning Attorney
As you can see, inheritance rights are complicated, and what your spouse is entitled to upon your death will depend on a variety of factors including the laws in your state. This is why it is imperative that you work with an experienced estate planning lawyer when creating your estate plan. An attorney will be able to help walk you through the inheritance laws in your state, help you understand what your spouse is and is not entitled to after your death, and give you advice on the best steps to take if you want to limit how much your spouse inherits after your death.
Learn More About Disinheriting a Spouse
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