How to Avoid a Spouse Inheriting in My Parent's Wills

by Cindy Hill
When parents remarry, their new spouses may inherit their estates.

When parents remarry, their new spouses may inherit their estates.

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When parents remarry, their children may be concerned about whether the new spouse will inherit estate assets and heirlooms that would otherwise have been passed on to the children. If a parent is able to make his own financial decisions, an adult child cannot stop him from leaving his estate to a new spouse, but frank conversation and a prenuptial agreement can help avoid conflict.

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Spousal Inheritance

Although a parent's remarriage may be greeted with dismay and jealousy by adult children, the parent's new spouse has all the legal rights and privileges of a husband or wife, including rights of inheritance. A parent may choose to disinherit his adult or minor children and leave everything to his new spouse. Without a legal agreement to the contrary, if the parent's will leaves out the new spouse, or the parent dies without a will, the spouse has a right called spousal election, allowing her to claim a significant portion of the estate.

Prenuptial Agreements

Prenuptial agreements, also called premarital or antenuptial agreements, are private contracts entered into between two people who are planning to marry. While the legality of prenuptial agreements is widely accepted by U.S. courts, the agreements must meet the element of fairness and often rigid procedural requirements of the law in the state where they are sought to be enforced. Premarital agreements are often used by people remarrying in later years, to ensure that the assets and heirlooms they bring to the marriage get passed down to their own children.

Conversation

An enforceable prenuptial agreement can prevent a new spouse from inheriting through a parent's will, but a child cannot compel her parent to enter into such an agreement. Courts look carefully at the circumstances under which a prenuptial agreement was entered into in order to assess its validity. Undue pressure by others is one of the elements the court will consider. Substantive conversation with your parent and being honest about inheritance concerns is the best way to encourage a parent to avoid leaving everything to his new spouse, while insuring that the parent's plans will be enforceable at law.

Minor Children

Though parents can disinherit their minor children in all of the United States other than Louisiana, minor children who were inadvertently left out of a will may have legal rights of inheritance under state law. Most states have laws addressing a minor child who was born after a will was written: He can challenge the will and receive a predetermined portion of the estate. Exercising this right may prevent the parent's spouse from inheriting the portion of the estate that must go to support the minor child.