Spousal Disinheritance

/ May 4, 2011

A majority of states statutorily provide a surviving spouse with the right to inherit a percentage of the decedent spouse’s estate, even where the decedent spouse’s will evidences an intent to disinherit the surviving spouse. This statutory provision is often referred to as the surviving spouse’s “elective share” of the decedent’s augmented estate. The share is typically determined by the length of time the decedent and his or her spouse were married; the longer the marriage, the greater the share.

The reason the elective share exists is because states recognize marriage as a partnership that depends upon tangible and intangible contributions from both spouses, and, as a result, it is believed that each spouse should be entitled to a portion of what belongs to the other spouse.

However, there are many states that circumvent this rationale by enacting statutes that bar a surviving spouse who has engaged in certain acts of marital misconduct, which are statutorily defined, from rights in the estate of the decedent spouse that they would otherwise be entitled. These acts of marital misconduct include:

  • Abandonment
  • Adultery
  • Bigamy
  • Desertion
  • Non-support

Additionally, as discussed in a previous post, a final divorce decree automatically disinherits an ex-spouse from any rights to a decedent’s estate.

If any of this applies to you, be sure to contact an estate planning attorney in your area for more details.