Leaving Money in a Will to Spouse Vs. Sibling

By Michael Butler

Writing a will is one way that you can have a say in how your property is distributed after you pass away. However, you are not entirely free to distribute your property any way that you want. The law normally provides that your spouse receive at least a share. How much money you can leave to a sibling instead of your spouse depends on your state's laws.

Community Property States

A minority of states treat marital property as community property. This means that any money acquired during the marriage and anything purchased with that money belongs equally to both spouses. If you don't have a will, all of the property automatically goes to your surviving spouse. In a will, you can ordinarily leave up to 50 percent of the property to someone else, such as a sibling. There are exceptions, however, for some types of property, including the family home. Generally, the spouse can continue to live in the house as long as it's a primary residence, but the spouse's ownership interest is only half. Whatever you put in a will, your spouse will get at least half of the community property. On the other hand, money and property you had before the marriage, or that you inherit individually, is typically your individual property to distribute however you want, especially if you maintained separate ownership during your marriage.

Common-Law Property States

Most states have a property law system inherited from the common law of England. In these states, money that you acquired during the marriage on your own is your separate property. With a few exceptions, you can distribute this money however you want in your will. You and your spouse can also hold money and property jointly. Your right to leave this money in a will to a sibling depends on the legal way in which you and your spouse own the property. If you own it as "joint tenancy with right of survivorship" or "tenancy by the entirety," the property automatically goes to the surviving spouse. If you own it as "tenancy in common," then half goes to your spouse automatically and you can distribute the other half as you want, subject to homestead exemptions that allow a spouse to continue living in the family home. Money that you jointly earned, such as in a joint business venture, can be more problematic. Ask a lawyer in your state how the state treats this money in the absence of a legal document.

Protect your loved ones. Start My Estate Plan

Spousal Elective Share

In common law property states, your spouse has the option to either take what was left to him in the will or to take a statutory share of your estate. Traditionally, your spouse is entitled to 33 percent of your entire "augmented estate," which includes the joint property and any property you gave away by other methods than using a will, such as gifts or trusts. The exact percentage of the spousal elective share varies from state to state. The Uniform Probate Code uses a formula based on how long you and your spouse have been married and some states have similar provisions. If you want to leave money to your sibling instead of your spouse, you should make sure that you leave at least the elective share amount of property to your spouse.

Pretermitted Spouse Share

Some states, such as Florida, follow a common-law doctrine called "pretermitted spouse share." Under this doctrine, if you wrote a will prior to marriage and did not amend the will after marriage to leave property to your spouse, the law assumes that was an oversight on your part. Your spouse is then entitled to the amount of your estate that she would be entitled to had you not left a will at all. This amount is set out by statute and is often different from the percentage of the elective share. The percentage varies between states.

Protect your loved ones. Start My Estate Plan
FAQs on a Last Will & Testament


Related articles

Does a Will Supersede Spousal Rights?

Generally, a person’s will governs the distribution of his assets when he dies. However, some rules apply to guide this distribution, such as rules that prohibit distributions to a pet. These rules vary by state, but many states have laws that mandate a certain minimum inheritance between spouses; thereby, keeping one spouse from disinheriting another spouse.

Iowa Marriage Laws for Inheritance

Marriage can change your rights with regard to inheriting property -- both the inheritances you receive while married and inheritances you receive after your spouse dies. Iowa law protects inheritances you receive while you are married and gives significant rights to the surviving spouse. It is important to understand how these laws apply to your situation.

Is an Individual Bank Account Considered Joint Property in a Divorce?

Married couples often share bank accounts, with both spouses depositing and withdrawing money. When a divorce court judge looks at the money in those bank accounts, he must apply your state’s laws to decide whether the funds are joint property or one spouse’s separate property. The name on the bank account does not necessarily determine whether the account is joint or separate property.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

What Are the Benefits of a Prenuptial Agreement?

Suggesting a prenuptial agreement with your intended spouse can drain the happy anticipation right out of your wedding ...

Inheritance Under California's Divorce Law

California has the distinction of being one of America's few community property states. Under California law, if you’re ...

How to List Cash in a Last Will & Testament

A last will and testament contains your final wishes for how and to whom you want your property distributed upon your ...

What Must a Surviving Spouse Inherit?

The amount a surviving spouse must inherit depends on a number of factors, including whether the married couple lived ...

Browse by category
Ready to Begin? GET STARTED