Key ideas about a spouse’s right to inheritance
In most states, it is impossible to totally disinherit your spouse in a will.
Spouses have a right of election, and can claim a certain fraction of the estate as their elective share, no matter what the will says.
In community property states, a surviving spouse owns half of their shared property. The will can leave the other half, plus any separate property, to whoever they wish.
Prenuptial agreements can be used to get around the right of election.
A surviving spouse is entitled to half of a 401(k) or pension, no matter who is named beneficiary. Life insurance and IRAs go to the beneficiary.
A person’s will details their intentions for their property, which means it can sometimes contain or imply a very deliberate message to their loved ones. Sometimes that message can be harsh, especially if the will was written to exclude a particular relative from any inheritance. But if the one who is excluded was the person’s spouse, then this particular stated intention is rarely enforceable, depending on the reasons the person had for doing so and the measures they took. In most cases, no matter what a loved one wrote in their will, their spouse is still entitled to a portion of the estate according to state probate law.
A person is legally entitled to make a will without notifying their spouse or revealing the contents to them. However, a will that intentionally states that the surviving spouse receives nothing or in which the spouse goes unmentioned is rarely legally binding. In the majority of states, a spouse can’t be intentionally disinherited unless they agreed to it in writing in a prenuptial or postnuptial agreement—and even those are not always ironclad.
Claiming an elective share
In most states (known as common-law states), a surviving spouse has the right to seek a share of the estate by filing what’s known as a right of election. That means they may be entitled to file a claim for their portion of the estate, called elective share (also called a widow's share, statutory share, election against the will, or forced share).
A spouse’s elective share is usually a set fraction—typically one-third or half of the estate—and is usually the same amount provided to spouses when there is no will. Some states include payable-on-death accounts, trusts, and other assets not subject to probate in the net estate, and some do not. Some have laws protecting the interests of the surviving spouse based on the length of the marriage, whether the parties had children, or whether the estate needs to go through probate.
In order to collect their elective share, the surviving spouse must file a written claim with the executor within six months after the executor’s appointment and within two years of their spouse’s death.
Even if the couple had a prenuptial or postnuptial agreement, a spouse may still in rare cases be able to contest the will and receive an elective share, though this can be a difficult and costly legal process. Divorce almost always terminates a spouse’s right of election, though spousal abandonment does not.
If the spouse is legally incompetent, such as if they have dementia, as long as they have a legal guardian, that guardian can choose the elective share for them with court approval and the assets will be placed in a custodial trust.
If the surviving spouse receives Medicaid, they or their guardian may be required to claim the elective share if it is more than what is provided by the will.
Nine states have community property laws, which generally mean that any property acquired during the marriage belongs equally to both spouses, regardless of who earned the income or whose name is on the title. The surviving spouse is legally entitled to half of all community property, while the person who died may leave their half to someone other than their spouse.
Prenuptial agreements are common when one spouse wants to leave their estate to children from a prior marriage.
The surviving spouse cannot claim an interest in any separate property, however, such as anything the person who passed away owned before they got married, or an inheritance they earned during the marriage. If the person left their estate to someone else in the will, the surviving spouse has no right to these assets unless they were commingled with community property, such as being placed in a bank account used by both spouses.
If neither community property nor the right of election applies, a surviving spouse may be disinherited completely. They can choose to contest the validity of the will itself, but otherwise they have no recourse.
If the couple signed a prenuptial agreement in which they agreed to waive their elective shares, the signed document is generally considered to override both the right of election and community property laws. Such agreements are common when one spouse wants to leave the bulk of the estate to children from a prior marriage.
Many postnuptial agreements are signed by couples who have separated, for example to avoid one of them inheriting the other’s estate before a divorce can be finalized. Otherwise, if they were still legally married at the time that one of them passed away, the surviving spouse could be entitled to an elective share, no matter what the intentions of the other spouse.
In most states, a surviving spouse may not make a life insurance claim if another person was named beneficiary on the policy. In community property states, however, the spouse is entitled to half of the insurance payout even if they are not the beneficiary.
If the life insurance beneficiary is a minor child, the court will appoint a guardian to oversee the child’s money until they come of age. If the surviving spouse is that child’s legal guardian, they will almost always be appointed the guardian of this money as well.
Under federal law, if the owner of a retirement account like a 401(k) or lump-sum pension payment is married when they die, the surviving spouse is automatically entitled to half of the money, regardless of who was named beneficiary.
Even if the surviving spouse signed a Spousal Consent waiving their right to their half, this waiver is often not enforceable if the spouse is under 35 years old, depending on the type of retirement plan. In addition, the waiver may be challenged if the survivor misunderstood the form because it was not clear or if it was signed under pressure.
In contrast to 401(k)s, IRAs are controlled by state law, and spouses are not automatic beneficiaries. By rolling a 401(k) into an IRA, an owner can name anyone as the designated beneficiary, with or without a spouse’s consent.
Some people may choose to use their will to make a posthumous statement about their marriage. But unless they legally redistributed their estate away from their spouse through trusts and similar financial instruments, state probate law will in most cases let the spouse inherit their share of the estate anyway.
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