When love and marriage aren’t so loving anymore, you may want to protect your assets from going to a spouse in case it’s not the right time to divorce. You may wonder if you can disinherit your spouse and what’s the process for doing so. However, it isn’t easy to cut them out of your will or other estate plans, so your savings and property go to your children or another beneficiary.
The laws vary widely from one state to the next, and unless your spouse has agreed to the situation, you’ll struggle to prevent standard inheritance laws from taking effect. To understand more about how the law affects your circumstances, it’s best to speak with a skilled Fairfax estate planning attorney.
Things to consider before taking action
It’s a common plot line in movies or TV to disinherit children for the sake of drama. Yet, that drama can become very real when you are attempting to remove your spouse from receiving their part of your estate when you die. The laws vary widely across states, and where you stand legally often has to do with whether your state uses community property or not.
While it’s possible, disinheriting a spouse requires either pre-nuptial planning or getting the other partner to sign an agreement. In either situation, you’ll need experienced guidance from a reputable estate planning lawyer to make sure your wishes will stand up in court.
Because you sign a legal contract and register it with the state when you get married, your relationship is considered an economic partnership. This means you can’t just cut your partner out of their half of the assets. You’ll need to use one or more of several legal options to prevent them from inheriting what you leave behind.
What are my options for disinheriting a spouse?
After you die, your spouse is generally entitled to as much as half of the marital estate, even if you don’t put them in your will. The exact amount depends on things such as how long you were married and how certain assets are titled or acquired.
As long as they make their claim as your spouse within six months of your will being admitted to probate, they can receive their share. To avoid this, you’ll need to pursue specific legal actions, most of which involve the spouse’s consent. For example, you could have them sign one of the following.
Pre-nuptial agreement
Signed prior to the marriage, this agreement can specify the dispersal of marital property as the spouses desire.
Post-nuptial agreement
Works similarly to a prenup but is signed by both parties after the marriage vows.
Voluntary waiver of rights
Your spouse signs a voluntary waiver of their right to inherit their share of your estate.
To make things easier, it helps if you have clearly defined your reasons for asking your spouse to sign a legal document removing their right to your estate. You should also each have your own estate planning attorney to ensure everyone’s rights are protected and that the document can’t be challenged later.
Can I disinherit a spouse if we are getting divorced?
Virginia statutes provide very strong protection for spouses against disinheritance, even in cases of pending divorce. Until the divorce decree is finalized, your partner is still eligible to receive their legally designated share if you die.
They can claim a family allowance of up to $24,000, an elective share of any exempt property, and a homestead allowance.
Where can I learn more about disinheriting my spouse?
Cutting a spouse out of your will and estate is often complicated and difficult to do. To understand more about your options for doing so, contact Select Law Partners PLLC at (855) 541-4867 or through our online form to schedule a meeting with an estate planning lawyer today.
