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.
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.
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.
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.