The surviving spouse is generally the first in line when it comes to the deceased’s assets. In most cases, when the couple was still married, it is what the deceased wanted. But what if he or she didn’t want the survivor to inherit anything? Can you disinherit your spouse to ensure he or she is excluded from your will? Yes and no. In this two part series, our estate lawyer in Cary will take a look at this unusual situation that may arise in your family.
Why would you disinherit someone? | Estate Lawyer in Cary
There are many reasons why someone may want to keep a surviving spouse from inheriting anything. The couple may not be together anymore but may not be legally divorced. The person may want their assets to go to children or other family members instead. But unless arrangements are made, even a will may not be able to overrule state laws governing how assets are distributed.
What if I have a prenuptial agreement?
Most people do not sign a prenuptial agreement when they marry, but it can provide protection when one spouse dies and does not want his or her assets left to the surviving spouse. This agreement can outline plans for the division of property or finances should the marriage end in divorce or death. It is not just used when one person has a substantial amount of money, either. It can be signed in order to protect one party if the other has debt he or she does not want the other to take on. It is also used in cases where one or both partners have children from another marriage so that they will remain protected.
Having a prenuptial agreement can be one way to protect yourself if you know you do not want your surviving spouse to receive anything upon your death. Because of state law, which vary depending on your state, there are not many other ways to see that the surviving spouse is disinherited.
The terms can vary depending on state laws. To learn more, contact our estate lawyer in Cary.
What if I have a will?
A last will and testament can outline how someone wants assets distributed upon his or her death. Having one is an important part of estate planning to ensure that your assets are protected and distributed according to your wishes. It is important that the terms are outlined clearly and follow the guidelines in your state. A lawyer with experience in estate planning should be able to offer input.
In common law states, you can omit the surviving spouse from receiving an inheritance, but he or she could still be able to claim an inheritance. For instance, if you leave something to a surviving spouse but not half, he or she could make a claim with the court for more.
Stay tuned to learn more about disinheriting a spouse in the second part of this series. We will cover what happens if you do not have a will and learn about various laws states have regarding how assets are left to the surviving spouse and children.