How to Disinherit a Spouse

Although wills give us a lot of control over what happens to our property after we die, there are some limitations to this power. The majority of states recognize the right of a surviving spouse to claim a share in the deceased partner’s estate regardless of any statements made in a will. Your ability to disinherit a spouse depends on your state and its individual laws.

There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In these states, most property that a couple obtains during a marriage is classified as “community property.” When one spouse dies, the other is automatically entitled to their half of all community property. There is nothing you can do in a will to prevent or limit your spouse’s claim to this property.

Forty other states have versions of an elective share, which permits a disinherited surviving spouse to petition the court for a percentage of the deceased’s property. States vary a lot in this area, with some states allowing only access to “probate property” — which excludes joint property and assets such as life insurance — some allowing access to both probate and non-probate property, and some combining both the deceased and surviving spouse’s assets for the purpose of valuation.

The elective share is voluntary, which means that if the spouse does not petition the court for the election, the deceased’s property will pass in accordance with the will. If your spouse agrees with your estate plan and consents to being disinherited, the court will not intervene.

The final state, Georgia, provides a year of financial support from the estate to a disinherited spouse, but gives no additional support or assets following that time. This is the closest you will be able to get to an unconsented disinheritance in the United States.