Surprise! You Can’t Easily Disinherit Your Spouse
Understanding Spousal Rights in Estate Planning Many people assume that if they write a will leaving everything to their children, a charity, or a favorite nephew, that’s the end of the story. But estate law has a twist that surprises even the most prepared clients: you usually can’t disinherit your spouse. In most states, the law protects surviving spouses from being completely excluded from an inheritance even if a will states otherwise. These rules exist to prevent unfairness and financial hardship, but they can also complicate blended family plans or second marriages. Let’s break down what this really means, why it matters, and what you can do about it.
1. The Legal Foundation: Spousal Elective Share
Most states follow what’s called a “spousal elective share” law. This gives a surviving spouse the right to claim a certain percentage of the deceased spouse’s estate no matter what the will says.
That means even if you leave your spouse out of your will entirely, they can still legally demand part of your estate.
Example:
Let’s say you live in Florida. The elective share there is 30% of the deceased spouse’s elective estate.
So, if your will leaves everything to your children from a previous marriage, your spouse can still file an “elective share claim” in probate court to receive that 30%.
Why?
The law assumes that marriage comes with mutual financial obligations — and that surviving spouses deserve support after death, especially if they contributed to the marriage or home.
2. What the “Elective Estate” Includes
A big surprise for many clients is how broadly the law defines “estate.”
The elective share doesn’t just cover property in your name. In some states, it includes:
Joint accounts and jointly owned property
Trusts you created during life
Retirement accounts
Life insurance with certain ownership rights
Pay-on-death or transfer-on-death assets
So even clever planning to “move assets out of your estate” may not completely prevent a spouse’s elective claim.
3. Why Someone Might Want to Disinherit a Spouse
While it might sound harsh, there are legitimate reasons why people sometimes wish to limit or exclude a spouse’s inheritance. Common scenarios include:
Second marriages where each spouse wants assets to go to their own children.
Estranged marriages where the couple remains legally married but lives separate lives.
Long-term care concerns — one spouse may want to protect assets from nursing home costs.
Business ownership where family wealth must remain in a bloodline or partnership.
But even with good intentions, state law often blocks total disinheritance — unless careful planning is done before death.
4. The Prenuptial or Postnuptial Agreement Exception
There’s one big way around the elective share laws:
👉 A valid, voluntary marital agreement.
A prenuptial (before marriage) or postnuptial (after marriage) agreement can waive spousal inheritance rights.
To be enforceable, these agreements must be:
✅ In writing
✅ Signed voluntarily by both parties
✅ Based on full financial disclosure
✅ Free from coercion or fraud
When properly drafted, a marital agreement can:
Waive elective share rights
Define who gets what assets
Protect children from prior marriages
Provide financial certainty for both spouses
Tip: Courts tend to uphold fair, transparent agreements. Hidden assets or one-sided terms can cause the agreement to fail and revive a spouse’s inheritance claim.
5. How to Protect Family Intentions Without Disinheritance
If you don’t want to disinherit your spouse but still want to balance family interests, estate planners can use several smart tools:
Use Trusts Thoughtfully
A Qualified Terminable Interest Property (QTIP) Trust allows your surviving spouse to receive income during their lifetime — but ensures the remaining assets go to your chosen heirs (like your children).
Use Life Estate or “Use and Occupancy” Arrangements
Allow your spouse to stay in the marital home during their lifetime, but transfer full ownership to children after death.
Combine Assets Strategically
Designate certain accounts for your spouse (such as retirement funds or insurance proceeds) while leaving other assets for your children.
Keep Communication Open
Many family disputes arise from surprise. Discuss your intentions in advance with your spouse and family to prevent conflict or litigation later.
6. What Happens If You Try to Disinherit Anyway
If you attempt to disinherit your spouse without a valid waiver or trust structure, several outcomes are possible:
Your spouse can file an elective share petition, overriding your will.
Probate may be delayed or complicated by legal challenges.
The court may rule portions of your plan invalid.
Your intended beneficiaries (like children) may receive less than you planned.
Bottom line: Disinheritance attempts without legal guidance usually fail — and often cost more in court fees and emotional stress than they’re worth.
7. Real-World Example: Estate of Smith v. Smith
In Estate of Smith (2020), a husband left nearly all assets to his children from a previous marriage and nothing to his wife.
Even though the assets were held in a revocable trust, the court ruled that they were still part of the elective estate.
Result? The wife successfully claimed one-third of the total estate, despite being left out of the trust entirely.
💬 The takeaway: Revocable trusts don’t necessarily protect against spousal elective claims — planning must be integrated across all accounts and documents.
Final Thoughts
Estate planning is about love, not loopholes. The law protects spouses from financial abandonment — and for good reason. But with the right tools, you can still honor your commitments to both your partner and your family.
If you’re in a blended family, have significant assets, or want to clarify your wishes, it’s critical to work with an experienced elder law or estate planning attorney.
The best plans aren’t just legal — they’re thoughtful, balanced, and fair.