Does My Spouse Inherit Everything When I Die?

By Cindy DeRuyter, J.D.

Does My Spouse Inherit Everything When I Die?

By Cindy DeRuyter, J.D.

If you have a spouse, he or she will inherit some or all of your assets after you die. Even if you have a will or trust in place naming other beneficiaries, intestacy laws in many states protect disinherited spouses, allowing the spouse to elect against the will and instead take a certain share of the estate, as specified by state statute.

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Nonprobate Assets

Nonprobate assets are those that pass to someone by contract rather than under a will or state intestacy laws. There are three primary types of nonprobate assets: jointly-held assets, assets with beneficiaries, and assets inside trusts.

If you own real estate, a bank account, an investment account, a vehicle, or other property with your spouse as "joint tenants with rights of survivorship" (sometimes abbreviated as JTROS) and one of you dies, the other becomes the sole owner of the asset.

Similarly, if you have a retirement account or life insurance policy that names your spouse as the beneficiary, those assets contractually pass to your spouse at your death. You can also name your spouse as the "pay on death" or "transfer on death" beneficiary of individually-owned bank accounts, investment accounts, or stocks and bonds. Be aware that if you want to name someone other than your spouse as your beneficiary, some states and financial services providers require your spouse to sign off on the beneficiary designation.

The third primary type of nonprobate assets includes anything owned by a trust. The trust agreement specifies who inherits when the person who created the trust dies.

Probate Assets

Probate assets are any assets that do not meet the previous description of nonprobate assets. If you prepare a last will and testament, you can name your spouse so they inherit probate assets when you die.

If you die without a valid will, your state's intestacy laws determine the distribution of probate assets. Some states' laws provide that a surviving spouse automatically inherits all of the assets whether or not the couple had children together. In other states, the surviving spouse only inherits some of the estate and surviving children inherit the remainder. The portion allocated to the surviving spouse may differ if the deceased spouse had descendants from a previous relationship.

A licensed estate planning attorney in your state can help you understand what your state's laws say about probate assets when someone dies without a will.

Option to Elect Against a Will

When you sign a will, you are signing a legal document. However, state laws provide safeguards for surviving spouses so that if one spouse intentionally tries to disinherit the other, the survivor can still inherit some of the estate.

By challenging the will, the surviving spouse can take the "elective share," sometimes referred to as the "widow's share" or "forced share." The surviving spouse's portion varies by state, but in many jurisdictions, it is between one-third and one-half of the overall estate. Some states' laws adjust the percentage depending on the length of the marriage or for other reasons, such as if the couple had minor children.

Preparing your estate plan can help ensure your assets pass to your spouse when you die. Start by contacting an estate planning lawyer in your state. Alternatively, you can use a reputable online legal services provider.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.