Can I disinherit my husband to ensure my adult children will inherit all of my assets?

Q: Can I disinherit my husband with estate planning to ensure my adult children will inherit all of my assets when I die?

-Wondering Woman

A: Dear Wondering:

It’s fairly simple to disinherit family members like siblings, parents, and even adult children using estate planning. However, many states prevent you from completely disinheriting your spouse, unless he or she agrees in writing to be disinherited in a prenuptial or postnuptial agreement.

The majority of states have laws that govern spousal inheritance rights—known as elective share laws or community property laws—that allow a surviving spouse to claim a portion of the deceased spouse’s estate. So even if you leave your husband out of your will and/or trust, he may be entitled to receive a percentage (typically 1/3 or 1/2) of your assets under these laws.

What and how much a spouse is entitled to claim under the laws varies widely from state to state. Some states base the spouse’s rights on how long the couple was married, some on whether or not the marriage produced children, and others depend on whether the assets must go through probate or not.

Certain states allow the surviving spouse to only claim a portion of the deceased spouse’s probated assets. So it may be possible to completely disinherit your husband in these states by ensuring that none of your assets require probate. One way to accomplish this would be to place your assets in a living trust, rather than a will.

Contact a Personal Family Lawyer® to learn the estate planning laws in our state and determine your options.