When you contemplate your estate plan, you typically focus on who you want to inherit your assets when you are gone. What happens though if there is someone you specifically do not want to inherit from your estate? More specifically, what happens if you want to cut your spouse out of your Will? Can you do that? Let’s see how California treats an attempt to disinherit a spouse.
Last Will and Testament Basics
At its most basic, a Last Will and Testament is a legal document that communicates a person’s final wishes pertaining to possessions and dependents. Your Will allows you to make both specific and general gifts. For example, you might make specific gifts of your home and $100,000 to an adult child. You could also gift a percentage of your estate to a beneficiary. For example, you could gift 50 percent of your entire estate to your spouse. As a general rule, you can distribute your probate assets any way you wish within your Will. There are, however, some exceptions to this general rule. One of those comes into play if you want to disinherit your spouse in California.
Why Might You Want to Disinherit a Spouse?
While anyone can be a beneficiary of your estate, only certain people are heirs of your estate. The difference is that a beneficiary is a person, entity, or even a family pet to whom you have made a gift within your Will. An heir is someone who is legally entitled to inherit from your estate according to the state’s intestate succession laws. Your spouse is always considered an heir of your estate. There are several legitimate reasons why you might not want your spouse to inherit from your estate, such as:
- You are estranged from your spouse
- You want to protect the inheritance of children from a previous marriage
- You have made provisions outside of your Will for your spouse
Regardless of your reason for wanting to disinherit your spouse, California law makes it tricky to do so.
Disinheriting a Spouse and California Law
Whether or not you can disinherit a spouse depends on the law in your state of residence. Because California is one of a handful of states that is a “community property” state, disinheriting your spouse is more complicated than it would be in a non-community property state. In a community property state, all assets acquired during the course of the marriage are owned equally by both spouses. In other words, while you can distribute your half of the marital property any way you want, your spouse is entitled to his/her half of the marital property as well.
Nevertheless, it is possible to leave your spouse out of your Will; however, certain conditions must be met for that disinheritance to stand up in court, including:
- You must make it clear in your Will that you intentionally disinherited your spouse (or left him/her out of the Will). Simply not mentioning your spouse will not be sufficient. AND
- You must include evidence that you left property and assets to your spouse outside your Will and you must include evidence that you did so in your Will. For example, if you left assets to your spouse in a trust agreement, you must reference the trust in your Will. OR
- Your spouse waived rights to inherit from you in a valid, signed agreement such as a pre-nuptial or post-nuptial agreement.
Contact a Sacramento Estate Planning Attorney
Please download our FREE estate planning checklist. If you have additional questions or concerns about disinheriting a spouse, or about your Estate plan in general, contact us at the Northern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.