Does a Will Supersede Spousal Rights?

By Jeffry Olson, J.D.

Does a Will Supersede Spousal Rights?

By Jeffry Olson, J.D.

Wills allow a person to determine who will inherit their property upon their death. However, some states have laws that provide a share of the estate for a surviving spouse even if a will attempts to prevent the spouse from inheriting. These laws vary by state and it is important to consult the laws in your state to determine the minimum you or your spouse are entitled to inherit.

Old man looking at tablet while sitting at desk with laptop open

No Valid Will

When an individual dies without a valid will, the law considers them "intestate." Every state has laws determining who inherits from an individual that dies intestate. Consult the laws of your state to determine what happens when an individual dies intestate where you are.

Elective Shares

Many states have laws that seek to guarantee a spouse's share of an inheritance, regardless of the terms of a valid will. Called an elective share, this is a percentage of the probate assets based on the length of the marriage. Commonly, this share is between one-third and one-half of the deceased's estate.

In states with elective shares, the percentage share provided by the state's statute overrides the terms of the will if it is greater than the percentage that the will provides. For example, if a married individual's will provides his or her spouse will inherit one-quarter of the deceased's assets but the state provides for an elective share of one-half, the surviving spouse will receive one-half of the deceased's estate, not the one-quarter provided for in the will. A spouse also receives an elective share even when the deceased attempts to disinherit him or her. Avoiding the elective share requires planning and may be difficult in your state.

Community Property States

Community property states do not use elective shares. In community property states, one-half of the marital assets already belong to the survivor. A will only determines what happens to the author of the will's, or testator's, one-half of the property. This makes elective shares unnecessary. So-called separate property states use elective shares to protect the interests of a surviving spouse.

Disinheriting a Spouse

Some states allow a spouse to use a prenuptial agreement to avoid the elective share rights of inheritance. The prenuptial agreement may waive the elective share entirely or specify another amount the spouse will receive upon the death of the testator. This agreement is outside of the will and may override the language of the will, depending on the drafting language used and the laws of your state. Because of this, many people seek the assistance of an online service provider or attorney for drafting estate planning documents.

Rights of a Surviving Spouse

Depending on your state's laws, a surviving spouse may have inheritance rights above and beyond those provided in the deceased's will. If you do not believe a deceased spouse's will provides you with the inheritance you are entitled to, consult the elective share statutes in your state. You may be entitled to a share greater than that provided by the spouse's will. If you wish to disinherit your spouse, the simplest way to do so is with a carefully drafted prenuptial agreement. Regardless, be aware that your state's laws may limit how you can distribute your assets upon death, even when you have a valid will.

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.