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.
Fit your business needs with the right LLC package
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.
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.
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.
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.