Can I Keep My Assets Separate From My Wife in a Will?

by John Cromwell

When you undertake estate planning, you may not want to transfer assets to your wife. The degree to which you may want to deny assets to your wife upon your death may vary. You may only want to keep certain assets from your wife so that your children receive them because those goods mean more to them. On the other hand, you may not want to leave your wife anything at all. If you are married at the time of your death, your wife generally has a right to a portion of your estate. You can leave specific assets to other beneficiaries. The degree to which you can keep your wife from inheriting your assets depends on the state in which you live.

Community Property States

Nine states have adopted community property rules: Arizona; California; Idaho; Louisiana; Nevada; New Mexico; Texas; Washington; and Wisconsin. Additionally, Alaska has an opt-in for community property, and Puerto Rico is a community property territory. Marital property includes all assets and income that a couple acquired during marriage, excluding gifts and inheritances that were given to one of the spouses. All other property is known as “separate property.” If you draft a will that does not transfer any of your property to your wife, she can claim all marital property and one half of the rest of your assets if all of your surviving children are hers as well. In some states, if you have children from another marriage, they are entitled to claim your half of the marital property. The non-marital property is divided subject to your will or state’s intestacy code.

Equitable Distribution States

The states that do not follow principles of community property abide by the principles of equitable distribution. In equitable distribution states, your wife can claim whatever is granted to her in the will or her “elective share” of your estate. The elective share is a percentage of your estate your wife is automatically entitled to as determined by a formula established by state law. Generally, how many living relatives you have and the length of your marriage will influence the size of the elective share. If your wife’s elective share is greater than what you gave her under your will, the inheritances of your other beneficiaries will be decreased to make up the difference. For example, assume you have an estate worth $100,000. You leave your wife $20,000 and a charity the remaining $80,000. If your wife has an elective share of 50 percent and she claims it, your wife and the charity would get $50,000 each.

Intestacy

If an estate is intestate, it means there is no valid will to dictate how the estate’s property is to be divided among beneficiaries. Your estate is composed of all of the assets you owned when you died. In these cases, the state where the decedent lived will provide a series of rules regarding how to divide the estate property. Generally, a state’s intestacy code will divide the property among your living relatives, with more property being transferred to your wife and children.

Right of Survivorship

Regardless of whether you live in a community property or equitable distribution state, property is subject to the right of survivorship. This right is applied to property co-owned by multiple people. When a co-owner dies, his rights in the property are extinguished and he cannot transfer his interest in the asset to anyone else. The last living co-owner owns the property outright. If you co-own property and predecease the other owners, you cannot transfer the property by will or through intestacy. As a result, your spouse cannot claim an interest in the land unless she is also listed as a co-owner.