The relationship between spouses is special in all contexts, not the least of which is estate planning. In many instances, you can exclude people from your estate plan, including your parents, siblings, and adult children. But the law provides special protections. These protect spousal disinheritance. But can you estate plan without your spouse. Read to find out.
Estate Planning Without Your Spouse in Different States
In every state, your surviving spouse shares at least part of what you own at your death. Granted, state laws vary on the particulars of this protection. However, they align on the basic premise that each spouse has a statutory claim to a portion of the deceased spouse’s money, property, and income.
Estate Plan Sans Spouse
You may have a legitimate reason for wanting to leave your spouse out of your estate plan. That reason may not even be related to bad blood. For example, your spouse may be independently wealthy and may agree that it would be better to leave your accounts and property to your children or a charity. However, unless your spouse has waived their statutory claim in a prenuptial agreement or postnuptial agreement (if legally recognized in your state), you may not be able to leave your spouse out of your estate plan entirely.
State Laws on Disinheriting a Spouse
No state allows spousal disinheritance against their wishes. The amount surviving spouses earn, varies by state. Nine states—Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin—have community property laws. In these states, married couples equally own all accounts and property acquired during marriage prior to a spouse’s death, with some exceptions. Spouses in community property states automatically get one-half of the property covered by this rule.
Prenuptial and Postnuptial Agreements
In some states, a prenuptial or postnuptial agreement can override spousal inheritance rights in both elective share and community property states.
Prenuptial agreements (signed before a couple is married) and postnuptial agreements (signed after marriage, but not legally recognized in all states) are contracts in which each spouse gives up their rights to the other spouse’s accounts and property in the event of divorce or upon their death (which includes a waiver of their right to the elective share). The provisions can be general and can waive inheritance rights to all their spouse’s accounts and property, or they can include carve outs for some accounts or property.
These agreements are common when a spouse wants to pass their money and property on to children from a prior relationship rather than to their current spouse. Having a legally enforceable document showing that the disinherited spouse has waived their spousal rights can help avoid elective share litigation, which research has shown often pits a stepparent against their former stepchildren.
It is important to note, however, that, regardless of structure, the court may rule pre- or postnuptial agreement invalid under certain circumstances. For instance, when coerced, not executed with full disclosure (e.g., one spouse hid assets or liabilities), or signed by a spouse who did not have the opportunity to consult with proper, independent legal representation prior to the time of signing.
Estate Planning That Does Not Require Spousal Considerations
The laws outlined above limit your ability to leave your money and property at your death to people other than your spouse. You have far more latitude to exclude your spouse, however, when it comes to selecting who manages your affairs when you are alive but cannot manage them yourself or who winds down your affairs after your death. Namely, you do not have to include your spouse in powers of attorney and healthcare directives.
A power of attorney addresses who can act on your behalf for financial and medical matters. In some cases, a power of attorney takes effect only if you are unable to manage your affairs; at other times, it can take effect immediately. A power of attorney can be general and grant another person broad authority to handle your affairs for you, or it can describe only those specific matters you want another person to handle on your behalf.
An advance directive denotes the types of healthcare you would like to receive if you are badly hurt or seriously injured and cannot communicate your wishes. It allows you to specify your wishes related to life-saving treatments and other end-of-life matters as well as your spiritual beliefs about death.
If your spouse is currently named as your power of attorney, you can change the designated agent on the document and give this power to a different individual. Without a power of attorney and are unable to manage your affairs, your spouse could petition the court to be appointed as your guardian or conservator, and spouses have priority to be appointed to such positions under most state laws. If the court does not know your wishes, it could very well allow your spouse to act in these very important roles.
Living Together, Planning Alone
There are several instances in which you may consider limiting your spouse’s inclusion in your estate plan. Maybe you do not have the heart (or the energy) to divorce your spouse later in life. Perhaps your spouse already has significant money and property of their own, and you have agreed to pass your money and property to those who need it more, such as your children from a prior relationship.
Whatever your reason for wanting to disinherit your spouse, state law may prevent you from doing so entirely, even if you modify your estate planning documents to reflect your wishes. If your spouse is on board with your plan, removing a spouse from an estate plan is easier. To discuss spousal disinheritance laws in your state and what estate planning you may be able to do on your own, please reach out to our attorneys.
About Skvarna Law Firm in Glendora and Upland, California
Skvarna Law Firm operates offices in Glendora and Upland, California. We provide legal services. We cover San Bernardino, Los Angeles, Orange, and Riverside Counties. This includes several cities. Upland, Ontario, Rancho Cucamonga, Fontana, Colton, Rialto, Chino, Chino Hills, Glendora, Claremont, Pomona, La Verne, Montclair, San Dimas, Azusa, Covina, West Covina, Diamond Bar, Walnut, La Puente, Corona, Norco & Mira Loma. Visit SkvarnaLaw.com to learn more.
