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Home » Estate Litigation » What will happen if I disinherit my spouse?

There is an assumption under the law that you will include all rightful heirs in your estate plan. However, you have the right to decide not to include anyone you want.

When you do this, it is disinheriting the heir. While you have the ability to leave your spouse out of your will, because he or she has a legal right to your estate, there is a chance it will not completely hold up in probate.

Spouse rights

Inheritance laws give your spouse the most rights when it comes to your estate. You can state in your estate plan that you do not wish to leave your spouse anything. However, this cannot completely overrule the law because of the right to an elective share your spouse has.

Elective share claim

During probate, your spouse may exercise the right to the elective share. This right will allow your spouse to get one-third of your estate after expenses for your funeral, debts and estate administration.

Potential roadblocks

Your spouse may not be able to claim the elective share if you were not living together or were separated at the time of your death. If someone can prove you and your spouse were not living together as partners, then the court may overrule the right to the elective share.

Understanding inheritance laws can enable you to avoid estate litigation issues. Once you are gone, you have no control over what happens. It is essential to know what your heirs may deal with by preparing for issues with disinheriting a spouse.