If you have concerns about an inheritance from your spouse, you better hope you don't live in Georgia. At the time of publication, it's the only state that allows one spouse to disinherit the other. However, other provisions under Georgia’s estate laws prevent a surviving spouse from utter destitution, at least for a while.
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Elective Share and Community Property Laws
In community property states, each spouse owns 50 percent of all property acquired during the marriage. Therefore, when one spouse dies, the other is automatically entitled to her half of the marital estate -- the decedent cannot bequeath that half to anyone else. However, Georgia is not a community property state so spouses in this jurisdiction have no automatic right to anything. All non-community property jurisdictions - other than Georgia - allow a spouse to claim a statutory share of her partner’s estate if he disinherits her, usually about one-third to one-half, which acts similarly to community property protection. This is called an "elective share," but Georgia’s legislature does not recognize elective shares either. If your spouse leaves you out of his will, or if he leaves you only a nominal amount, such as $1, you have no recourse.
Support for One Year
Georgia law does permit a surviving spouse to claim a year’s financial support from the estate, but even this recourse is not guaranteed. The exact amount is set by the court based on the spouse's financial needs. The surviving spouse must file a lawsuit with the court to request this money, giving the decedent’s beneficiaries an opportunity to object. Beneficiaries will sometimes do so because the year's support comes off the top of the estate before any of the decedent’s creditors receive payment and before distribution of bequests. The decedent’s beneficiaries receive only what remains. In other words, a spouse's claim for support diminishes their own inheritance.
Unless a decedent is generous to his spouse in his will, her best chance at inheriting arises if he dies intestate, or without a will. In this case, Georgia’s state code guarantees that his surviving spouse will receive at least one-third of his estate. If the decedent leaves no children, his spouse receives his entire estate. Otherwise, his spouse must share the estate with his descendants. If he leaves one child, his surviving spouse receives 50 percent of his estate and his child inherits the other 50 percent. Because she is guaranteed one-third, if the decedent leaves four children, his surviving spouse inherits her one-third percentage and his four children equally divide the remaining two-thirds of the estate.
Effect of Divorce
Georgia’s estate laws apply only to intact marriages. If a decedent makes a bequest to his spouse in his will and they later divorce, but he doesn't update his will or draft a new one to eliminate reference to her, Georgia law nullifies her bequest. The other terms of his will remain valid, but the law treats this situation as though his spouse predeceased him. She no longer exists to inherit her bequest so it reverts back to his estate. An exception exists if the decedent states in his will that he wants his spouse to inherit regardless of their divorce.
References & Resources
- State Bar of Georgia: Wills
- Louisiana Law Review: Community Property v. The Elective Share
- G. Cleveland Payne, III: Year’s Support (12-Month Support)
- MedLawPlus.com: Georgia Intestate Succession Laws
- Cook & James: Wills & Trusts (PDF)
- FindLaw: Inheritance Law and Your Rights
- Bryan Cave Attorneys: Why Do I Need a Will? (Part II)