How to Stop Your Spouse From Inheriting From You
Disinheriting your relatives is easy, in theory. When a deceased person’s estate goes through probate, the decedent’s will is the most authoritative document in determining who inherits what. If a family member believes that the testator disinherited him or her unfairly, or that the decedent wanted the family member to receive an inheritance, contrary to what the will says, the burden of proof is on the disinherited family member to persuade the probate court that the will is legally invalid or that the decedent signed the will under undue influence by an enemy of the disinherited family member. In other words, if your parent or sibling disinherited you, the final answer is probably “tough luck.” If your spouse disinherited you, it is a different story. Ensuring that your spouse does not inherit property from you is more complicated than disinheriting any of your other family members. If you are sure that you do not want your spouse to inherit property from you if your spouse outlives you, contact a Bronx estate planning lawyer.
Your Spouse Can Inherit Property From You Even If Your Will Says Otherwise
The law gives spouses more opportunities to inherit than any other family members. The decedent’s surviving spouse has the right to some or all of the estate if the decedent did not write a will; how much the spouse inherits depends on whether the decedent also had children. If the decedent wrote a will, the probate court must follow the instructions in the will. No one can override the will unless they prove to the probate court that the will is invalid for formal reasons or because the decedent signed it under duress or when he or she was too ill to understand the content of the will and meaningfully consent to signing it.
The only exception is the decedent’s surviving spouse. A disinherited spouse can claim an elective share of the estate, which is either $50,000 or one third of the value of the estate after it pays its taxes and debts, whichever is greater. After giving the spouse the elective share, the probate court distributes the remaining assets in the will according to the provisions of the will.
How to Prevent Your Spouse From Claiming an Elective Spousal Share
The simplest way to stop your spouse from inheriting from you is to get a divorce. When you divorce the provisions of your will that pertain to your spouse automatically become invalid; the court interprets the will as it would if your spouse had predeceased you. If you want to stay married to your spouse but you do not want your spouse to inherit from you, then you should sign a postnuptial agreement in which each spouse waives the right to an elective share of the other’s estate.
Schedule a Confidential Consultation With a Bronx Estate Planning Attorney
An estate planning lawyer can help you draft a prenuptial agreement waiving the right to an elective share of your spouse’s estate, so that you can keep the peace with your relatives by marriage. Contact Cavallo & Cavallo in the Bronx, New York to set up a consultation.