By Angela Siegel
Founder
Founder
Why would anyone want to disinherit your spouse? Most commonly it is because it is a second marriage and one has children from the first marriage that they want to provide for. It also could be that the spouse has become disabled and leaving him/her your assets would not help the situation and might cause the spouse to lose public benefits, if the spouse is collecting them. It could also be for tax or other reasons.
Most states have laws which essentially prevent a spouse from being disinherited. The primary purpose is to avoid the situation where the surviving spouse becomes impoverished and can not live without public benefits. These laws give spouses the right of election, which means the surviving spouse has the right to claim a portion of the assets, despite the deceased spouse having left a will which does not adequately provide for the survivor or leaves the survivor with nothing. In New York, the survivor has the right to take 1/3 of the deceased spouse’s assets, even if some or all of those assets were jointly owned, owned by a trust, or otherwise would pass outside of the will. In Florida, the survivor is entitled to 30%.
Is there a way to prevent this? First, if the survivor is on board with you not leaving him/her with the required amount of assets, that is fine. However, it is possible that could change and/or that the survivor’s children challenge it on his/her behalf. The survivor has a limited amount of time to assert his/her right of election and must make the filing in court; therefore, it is not automatic and does require action on the part of the survivor. The best way to prevent this is to enter into a properly drafted prenuptial or postnuptial agreement which contains a provision whereby both parties waiver their right to election.