Can You Disinherit Your Spouse? Part Two

Welcome back! We’re answering the question – can you disinherit your spouse? It is a question that has many answers which depend on where you live and what legal documents you have created to deal with the situation before it occurs. Our lawyer in Raleigh NC is here to help.

In the first part we covered what happens when you have signed a prenuptial agreement before you are married. We also covered what happens when you have created a will as part of an estate plan. Now let’s see what happens if you do not have the proper legal documents outlining your wishes.

What if I don’t have a will? | Lawyer in Raleigh NC

If you do not have a will, then the state will decide what happens to your assets. The state’s laws will determine who gets an inheritance and how much he or she will receive. It will also depend on if the state practices community property laws or elective share rights.

Under community property laws, which vary from state to state, the surviving spouse could have rights to half of everything if other instructions are not outlined in a will. Community property is recognized in some states as joint ownership between married couples. If a couple purchases something during marriage, it is owned equally by both parties regardless of how it is titled. So that means all debts are incurred together.

Other states have elective share rights that may entitle a surviving spouse to a portion of the deceased’s probate and non-probate assets as well as property that was in the name of the deceased. A handful of states, including North Carolina, have elective share rights that state that a disinherited spouse can elect to take part of the deceased’s probate estate but not all non-probate assets.

Assets that require probate include the property named in a trust or life estate, payable on death or transfers on death accounts, all life insurance policies, IRAs and annuities.

How can I protect my assets?

If you create a will that adheres to your state’s guidelines, you should have a document that will hold up in court even if your surviving spouse challenges it. Be sure to also include how you want other assets, such as retirement accounts and life insurance policies, distributed. People often update their wills with the names of their desired beneficiaries, but forget about other policies that name someone they no longer want to receive the benefits.

In some cases it may be advisable to explicitly explain that certain people are omitted from the will to show that it was planned and not an error on your part or an oversight. You may be able to include a clause that states your intentions. Our lawyer in Raleigh NC can help. 

Although not as common, some couples have signed a postnuptial agreement after they were married in order to seek the same protection for their situation.  There are three kinds of postnuptial agreements, including one that outlines what happens to marital property at the time of death of one party. The agreement can waive rights to the property that he or she would have had under state law.

If you have questions about how to disinherit your spouse under your state’s guidelines, a lawyer in Raleigh NC can offer guidance. Contact Klish and Eldreth, today

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