Does a Will Supersede Spousal Rights?

By Heather Frances J.D.

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.

Intestate Succession

If you die without a will, your state’s laws of intestate succession will determine who inherits your estate. These laws also apply if the court determines your will is invalid because it was made improperly. Intestate succession laws often distribute property according to a hierarchy of family members, beginning with closer relationships such as spouses and children.

Elective Share

If you die with a valid will, your will determines who gets your property, except in cases in which the will conflicts with your state’s elective share rules. An elective share -- usually, one-third to one-half of the deceased spouse’s estate -- is the portion of your estate to which your spouse is entitled, regardless of what your will says. For example, if you leave one-third of your estate to your spouse in your will, but your state’s laws give your spouse one-half of your estate, your spouse will receive one-half, not one-third. If you attempt to disinherit your spouse, she will still be entitled to an elective share. A surviving spouse’s elective share is generally more when you have no descendants versus when you do.

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Community Property Vs. Separate Property States

Elective share statutes are typically found in separate property states – states that treat property owned by married persons as separate property of each spouse – rather than community property states. Community property states already treat one-half of the marital estate as the surviving spouse’s property; in his will, the deceased spouse can only give away his half of the marital estate. All states, except Georgia, have either community property laws or elective share laws.

Prenuptial Agreements

You may effectively disinherit your surviving spouse in your will if you have a valid prenuptial agreement, though state laws vary on these requirements. If your state allows it, your prenuptial agreement can allow your will to trump your spouse’s statutory right to an elective share, even if you disinherit your surviving spouse in your will.

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Blood Relatives & Wills

If you make a will, you can leave property to your blood relatives -- your children, grandchildren, parents, siblings and other biological relatives -- or you can exclude them from your will. If you die without leaving a will, a state probate court will divide your property between your spouse, if you are married, and some of your blood relatives. If you leave a will that is unclear, doesn't follow your state's requirements for a valid will, or contains odd provisions that suggest you are not mentally competent, your blood relatives can challenge the will.

How Much of a Husband's Estate Is a Widow in Florida Entitled To?

In Florida, a husband is free to leave everything to his wife in his will, if he has a will. However, if he doesn’t make a will – or if he makes a will but doesn’t leave enough of his estate to his wife – Florida law steps in to determine how much of the husband’s estate the wife is entitled to when he dies.

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.

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