Disinheriting a spouse is rarely straightforward in the United States. State laws—particularly those that guarantee a surviving spouse’s elective share—make it very difficult to exclude a spouse from inheriting, even if the will says otherwise. But with proper planning, it may be possible to structure an estate that avoids these default protections.
What Is the Elective Share?
The elective share is a legal right that allows a surviving spouse to claim a portion of the deceased spouse’s estate, even if the will provides them little or nothing. In other words, if your will says, “I leave nothing to my spouse,” the law often says, “Too bad, they still get a share.” The surviving spouse can elect against the will and legally demand their portion.
How Much Can a Spouse Claim?
The elective share percentage and scope vary by state. For example, in New Jersey, the elective share is one-third of the augmented estate. It basically means that everything you owned and gave away near the end of your life—plus what’s still in your name when you die. In New York, it's one-third of the net estate after debts and expenses. In Florida, it's 30% of the elective estate, including jointly owned and trust-held assets in some cases.
Why Is It Hard to Disinherit a Spouse?
It's because of public policy: States want to avoid widowed spouses relying on public assistance. It is also unfair to cut off a stay-at-home spouse after they have spent decades caring for the household. Also, the law treats marriage as a shared financial life, not just an emotional one. Far-reaching elective share laws also make it difficult to cut one's spouse off. These laws often apply to more than just the will and include many non-probate transfers.
How to Prevent a Spouse from Claiming the Elective Share?
While you can’t just write your spouse out of your will and assume that will be the end of it, there are some ways to achieve the same objective, with your spouse’s cooperation or significant legal planning.
The most direct and effective method is a written agreement, signed voluntarily and with full disclosure, in which each spouse waives the right to an elective share. One may use a prenuptial or postnuptial agreement for this purpose. Divorce also terminates spousal rights. Simply being estranged or separated won’t remove the right to the elective share.
One may also transfer assets into an irrevocable trust during one’s lifetime. An irrevocable trust legally removes the assets from the individual’s ownership and from the probate estate—thereby potentially placing them outside the scope of the elective share. However, it also means that you no longer have control over your assets. It is irrevocable, meaning that it is very difficult to make changes or amendments. Setting up an irrevocable trust can be complicated and costly, not to mention the potential tax and legal consequences. It is not for everybody.
Conclusion
Disinheriting a spouse isn’t just difficult—it’s often impossible unless you plan carefully. Elective share laws are powerful tools designed to protect surviving spouses from financial hardship. However, with advanced planning, it may be possible to limit or even eliminate a spouse’s inheritance rights, provided all legal requirements are satisfied.
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