If you are in the process of putting your will together, you probably have a lot of questions. It is always important to speak with an estate planning attorney to get all the answers you need. This guide, however, will address one question is particular: can you leave your spouse nothing in your will? The answer is that it is possible under certain circumstances to leave your spouse nothing, but generally it is impossible. Learn more about how this works.
The State You Live in
It is important to realize that the state you live in plays an enormous role in estate planning in general, and specifically a surviving spouse’s rights. Each state has unique laws relating to this matter, giving the surviving spouse the ability to claim certain parts of their deceased spouse’s estate. Most states fall into two categories, although the exact laws still vary greatly even between two states in the same category. These categories are:
- Common law property states
- Community property states
The first step in answering this question is to learn which kind of state you live in.
Common Law Property States
In common law property states, surviving spouses have the right to claim a certain portion of the estate of deceased spouses. A surviving spouse can choose between taking what the will grants them, which is called taking under the will, or taking what the state laws grant them, which is called taking against the will. It is common for a state to grant a surviving spouse a third or a half of the estate. This means that if the will grants them less than this amount, they can choose to take against the will instead. It is also very common for a state law to grant the surviving spouse the residence if nothing else.
Community Property States
In community property states, this question does not really apply. While both partners in the marriage are still alive, laws in these states divide property evenly between the partners. This means that at the time of one spouse’s death, it is impossible to leave nothing to the surviving spouse, as they already own half of the estate.
Of course, a spouse is always allowed to waive their right to receive anything. You might be able to set up that kind of agreement with your spouse prior to your death. As always, the important thing is to work with a wills and trusts lawyer, like a wills and trusts lawyer in Sacramento, CA, to ensure your final wishes are met.
Thanks to Yee Law Group, PC for their insight into what rules apply to putting your spouse in your will.