Even if you make a will disinheriting your spouse, he or she will usually still be able to claim an inheritance. In many states, a spouse can elect to waive the will and instead take the elective share, also called a forced share, provided by law. See spousal share. In community property states, the surviving spouse has the right to one half of all community property and all his or her separate property.
The type and amount of property your spouse is entitled to inherit from your estate varies from state to state. The following factors impact what your surviving spouse is entitled to inherit:
1. Whether you reside in a community property state
2. If you do not live in a community property state, the elective share provided for surviving spouses under applicable state law
3. Whether your spouse signed a marital agreement, such as a prenuptial or antenuptial agreement
4. Whether your state allows a surviving spouse to claim a share of your probate estate or a share of non-probate property as well, referred to as the augmented estate
An attorney licensed in your state can advise on your spouse's lawful share of your estate. With that information, you can determine how to make gifts and bequests to the beneficiaries you want to inherit the remainder of your estate.
The law provides certain inheritance rights for spouses. As a result, you generally cannot disinherit a spouse. As a matter of public policy, the law seeks to prevent one spouse from using disinheritance to take the surviving spouse's lawful share of marital property.However, it may be possible to ensure your spouse only receives that which he or she is entitled to inherit by law, and nothing more.If you are concerned about your spouse's inheritance rights, an estate planning lawyer can provide advice on:a. your spouse's statutory share; and
b. legal estate planning methods of maximizing the amount you can leave to other heirs and beneficiaries.
If Spouse is Stealing From Your Estate
If you suspect your spouse is stealing from your estate, there are several steps you can take including:
1. Get a complete printout of all your financial statements, including bank, brokerage, stock, and retirement accounts.
2. Contact representatives of the financial institutions where you hold your accounts and let them know about any unauthorized activity. Change account passwords if necessary.
3. Take inventory of your personal property and make a list of items that are missing. Use a camera or video recorder to make a complete record of all your personal property.
4. Review title to property and account registrations to see whether any changes should be made.
5. Store valuables in a safe your spouse cannot access.
6. Get a safe deposit box at your bank to store other valuables and papers.
7. Consult an attorney about what you can do regarding any property your spouse has stolen from your estate and whether any changes should be made to your estate plan.
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