With contemporary estate planning comes particular issues. There are significant differences between the conventional family structures of the past and the modern family structures of today. There are a wide variety of modern family configurations, including same-sex and unwed couples raising children, divorced parents who choose to remain married in order to raise their children, married couples who lead completely separate lives but continue to be considered legally married, and many more.
Not as Simple as Just Putting Your Wishes Down on Paper
What happens if you are lawfully married but you decide that you no longer want to leave your spouse an inheritance for one reason or another? The common notion is that if you establish a legitimate Last Will and Testament or a Revocable Living Trust, you may decide who will inherit your property when you pass away. This belief stems from the fact that wills and trusts are legal documents. However, a surprising reality is that you cannot intentionally disinherit your spouse in the majority of states, including the District of Columbia, unless they have agreed in writing to be disinherited as part of a prenuptial or postnuptial agreement. This is the case even if you have a prenuptial agreement.
In addition, the rules that regulate spousal rights upon death, which may be referred to as community property laws or elective share laws depending on the state, differ substantially from one state to the next. There are laws that provide protection for the surviving spouse depending on the length of time the couple was married. Other laws take into consideration factors like as whether or not the couple had children together, as well as whether or not the dead spouse left any assets behind that need the administration of probate.
States that Practice Community Property
There are now nine states that adhere to the community property model, and they are as follows: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, New Mexico, Texas, Washington, and Wisconsin. Because of the frequency with which laws are updated, it is important that you consult an attorney. A spouse who is disinherited has the right to inherit half of the community property in states that follow the community property model. However, the surviving spouse has the right to leave their whole share of the separate property as well as their share of the community property to anybody they want to designate in a legal will or revocable living trust.
The Fight for Spousal Rights in the State of Georgia
At this time, Georgia is the state that provides surviving spouses with the fewest rights when it comes to inheriting a piece of their dead partner’s assets. This is the case in every other state as well. According to Georgia law, a disinherited spouse is only eligible to receive a monetary allowance from the estate of the dead spouse for the year after the death of the deceased spouse. This provision is analogous to the awarding of interim alimony during a divorce proceeding. After that point, the surviving spouse is not eligible to receive any more financial assistance or anything else from the estate of the dead husband.
Share Options for the Selective Use of the UPC
Only a portion of the UPC’s definition of an enlarged estate has been accepted by the following nine states: Delaware, Florida, Maine, Nebraska, New Jersey, New York, North Carolina, and Pennsylvania. Virginia is the only state to have adopted the whole term. In these states, a spouse who is disinherited has the option of inheriting a part of the dead spouse’s probate estate as well as some of the deceased spouse’s non-probate assets, but not all of them.
Elective Share Rights for the UPC
The definition of an enlarged estate has been accepted by the legislatures of the following ten states: Alaska, Colorado, Hawaii, Kansas, Minnesota, Montana, North Dakota, South Dakota, Utah, and West Virginia. The Uniform Probate Code is used in these states (UPC). In these states, the disinherited spouse has the option of choosing to receive a share of either the dead spouse’s probate estate or non-probate assets, as well as property that is titled in either spouse’s name. It is important to be aware that in the state of Alaska, married couples have the option to construct a community property arrangement by means of a written agreement.
Elective Share Rights Outside of the UPC
In the other 21 states, a disinherited spouse is only permitted to receive a small percentage of the dead husband’s wealth via the probate process. Because of this, the dead spouse has the ability to entirely disinherit the surviving spouse in these 21 states as long as they do not leave behind any assets that will need to go through the probate process. What exactly is included in this package?
- Any and all real estate that is registered in the name of the revocable living trust established for the dead spouse
- Accounts that are payable on death (POD) and transfer on death (TOD), as well as any real or personal property in which the dead spouse possessed a life estate.
- The total amount received from life insurance
- IRAs and annuities in their entirety