How to Cut a Husband Out of a Will

By Beverly Bird

Probate statutes – those that determine whom you can disinherit and under what circumstances – are some of the most complicated laws. They can vary widely in their finer details from state to state. One aspect is almost universal, however: you usually can't disinherit your husband – at least not without his agreement.

Probate statutes – those that determine whom you can disinherit and under what circumstances – are some of the most complicated laws. They can vary widely in their finer details from state to state. One aspect is almost universal, however: you usually can't disinherit your husband – at least not without his agreement.

Elective Shares

In the majority of states, there are "elective share laws." This means that your husband can simply notify the court that he doesn't want to accept the terms of your will if you write him out of it and leave him nothing. He is then entitled to a sizable share of your estate, no matter what your will says. The exact percentage he receives depends on a variety of factors, such as whether he has children from another relationship. In New York and many other states, he will get one third of your estate. In other jurisdictions, it could be as much as 50 percent, particularly if your husband has no children. In states that have adopted the Uniform Probate Code, such as North Carolina, this percentage is based on your so-called "augmented estate" – meaning everything you own, even assets that don't require probate because they pass directly to a beneficiary by contract, such as a life insurance policy or assets held in most trusts.

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Community Property States

Nine states – Wisconsin, Louisiana, Washington, Arizona, Texas, California, Idaho, Nevada and New Mexico – do not have elective share laws because they don't need them. These are community property states, and if you live in one of them, your husband has an equal ownership interest in your entire marital estate – everything you acquired after the date of your marriage. You have no legal right to bequeath this property to anyone else because you own half of it and your husband owns half. In the event of your death, he gets to keep his half, and nothing you say in your will can change that. You can usually bequeath anything that belongs to you alone -- your separate property -- to anyone you wish, however. "Separate property" consists of anything you acquired before you got married or that you received by way of gift or inheritance.

Nuptial Agreements

All states allow spouses to enter into private agreements regarding their property, and these agreements can override elective share laws or community property laws. A prenuptial agreement is one such contract; you can also make a contract after your marriage, called a post-nuptial agreement. As long as your agreement conforms to your state's laws regarding form and other requirements, you can use one to cut your husband out of your will. Unfortunately, this option only works if you have his consent. Both of you must sign the agreement for it to be valid.

Other Exceptions

Georgia is unique in that it does not recognize elective share laws, and it is not a community property state. If you live in Georgia, you don’t have to include your husband in your will, but he can petition the court for a year's spending allowance after your death. The court decides exactly how much this allowance should be and it comes off the top of your estate. If there's anything left over, your husband has no right to these assets or money if you've omitted him from your will. A handful of states have not adopted the Uniform Probate Code. In these jurisdictions, it's possible that the percentage your husband receives as an elective share would be based only on your probate assets and not based on your entire estate. In these states, if you hold property in a trust or have arranged for certain assets to pass directly to named beneficiaries, these would not be part of your probate estate.

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What Happens to My Husband's Estate If He Died & We Live Apart in Alabama?

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What Constitutes an Heir?

Your "heirs" are your relatives. You may not like all of them, but if you die without leaving a will, chances are they’ll inherit your estate -- or at least a portion of it. When you write a will, you can leave your property to anyone you like; these individuals are known as your "beneficiaries." If you don’t leave a will directing to whom you’d like your property to pass, your state government will give it to your heirs, according to rules outlined in state law.

Wisconsin's Inheritance Laws

Without proper estate planning, your property may be distributed very differently from the way you want it distributed when you die -- your kids could receive more than you wanted or your spouse might receive less. However, if you plan according to Wisconsin’s inheritance laws, you can protect your assets and your beneficiaries from an undesirable accidental result.

What Happens When Someone Refuses to Accept Their Inheritance?

Not everyone is happy to receive an inheritance. Depending on your personal situation, you might elect to refuse or disclaim a bequest made to you by a loved one for any number of reasons. If you’re younger, the windfall might affect your eligibility for student aid, even if it's not payable to you immediately. If you’re older, it might prevent you from qualifying for Medicaid. Further, if you're already wealthy, an inheritance will increase your estate's value, which could mean your own estate will end up paying additional federal estate taxes when you die. The law recognizes these issues sometimes occur and you usually do not have to accept an inheritance if you don’t want to do so.

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