Can You Disinherit Your Spouse?

Previous posts have discussed how to disinherit your heirs such as a child, sibling, or parent. But what if you want to disinherit your spouse?

Some people may want to disinherit their spouse because they have already provided for him or her elsewhere in their estate plan. Another reason for disinheriting a spouse may be because the spouse has his or her own assets. As an example, suppose a couple marry later in life and each have children from a previous marriage. Neither needs the assets of the other and want to simply provide for their own children. How best to accomplish that?

The best way to disinherit a spouse is by a prenuptial or postnuptial agreement. If spouses sign a waiver and agree to receive nothing or less than the law allows, there is no problem.

The prenuptial or postnuptial agreement containing the waiver should be prepared by an attorney to avoid a situation that occurred in the California case of Estate of Will, 170 Cal. App.4th 902 (2009). A couple in their 80’s married and each had grown children. They signed a prenuptial agreement in which they essentially agreed that they would each keep their own assets and waived the right to inherit from each other. When the husband died a few years later, the wife petitioned the court for a share of her husband’s estate, arguing that the Probate Code protects a spouse who is not mentioned in estate planning documents executed prior to marriage. (The husband had not amended his will or trust after the marriage).

Section 21610 of the Probate Code gives an omitted spouse a statutory share of the other spouse’s estate but not if (1) the decedent’s estate plan specifically disinherits the spouse (2) the spouse receives assets outside of the estate, or (3) the spouse executes a valid waiver. The waiver signed by the wife was not done correctly and her husband had not specifically disinherited her in his estate plan so she argued that she was entitled to her statutory share of her husband’s estate. The California court found that the waiver she signed, although not completely in accordance with the Family Code, barred her from receiving anything from her husband’s estate.

If you are considering disinheriting a spouse for any reason, you want to be sure you do it correctly with a prenuptial or postnuptial agreement plus an estate plan (or amendment to your existing plan) with the appropriate language. The attorneys at Pinkerton, Dopplelt, & Associates, LLP have experience in both estate planning and family law and can assist you with these issues.