Can you disinherit your spouse?

Surprisingly, people ask if they can disinherit their spouse.  Unfortunately (or fortunately), in Minnesota, the answer is that one spouse can only disinherit the other by complete agreement between them.  However, people still try to find ways to cut out their spouse, which only tends to complicate the process in the event of death.  As will be discussed, a surviving spouse generally has rights, regardless of his or her deceased spouse's actions to the contrary.   

What share does the surviving spouse receive if there is no will?

First, it is important to understand what happens to the surviving spouse in case the decedent did not leave a valid will.  If the decedent dies without a will, he or she is deemed to have died intestate and the property will pass to the decedent's heirs at law.  

Under Minnesota intestacy laws the decedent's surviving spouse would be entitled to the entire estate if the decedent has no children, or if all of the all of the decedent's surviving children are also children of the surviving spouse, and the surviving spouse has no living children with anyone other than the decedent.

Otherwise, the surviving spouse would be entitled to the first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving children are also children of the surviving spouse and the surviving spouse has one or more surviving children who are not children of the decedent, or if one or more of the decedent's surviving children are not children of the surviving spouse.

The surviving spouse may also be entitled to certain exempt property such as the homestead, some personal property, and a family allowance.

What share does the surviving spouse receive if he or she is specifically disinherited in the will?

For various reasons (some good, some questionable) people will include clauses in their wills that state, “I am intentionally not providing for my spouse is this will.”  At first glance this may appear to do the trick and cut the spouse out.  Moreover, a decedent may have changed beneficiary designations on all nonprobate assets, in an attempt to truly leaving nothing to the spouse. 

However, these actions have little to no impact on what share a surviving spouse may be entitled to receive, it only complicates the administration of the decedent’s estate.

In Minnesota, and in many other states, a surviving spouse has a right of election of up to 50% of the decedent’s augmented estate.  The augmented estate generally includes all of the assets the decedent’ owned at the time of his or her death, regardless of whether the property was subject to probate.  The percentage of the spouse’s share is  based on the length of marriage, ranging from only a supplemental amount for marriages less than one year, to 50% for marriages more than 15 years.

Therefore, the spouse may be entitled to a share of the decedent’s estate, even if he or she was not provided for in the will, or named as beneficiary on nonprobate assets.  A surviving spouse may also opt to take an elective share if the decedent did not sufficiently provide for him or her in the will and the elective share would result in a larger amount.

These safeguards are available to protect married persons with the understanding that divorce is there for a reason.  If an individual truly wished to cut out his or her spouse then he or she should have filed for divorce – at least that is the logic.

Waiver of Elective Share

The only was to circumvent the elective share is by mutual agreement of the parties.  Prior to marriage, the parties may enter into a prenuptial agreement whereby one or both of the parties waive any right to claim an elective share of the deceased spouse’s estate.  Prenuptial agreements require complete disclosure of all assets by both parties, each party must have an opportunity to consult with an independent attorney, and the execution of the agreement must be witnessed and notarized.  Even then, the court may only enforce this type of agreement if it is procedurally and substantively fair.  Substantive fairness guards against misrepresentation, overreaching and unconscionability.  Procedural fairness is satisfied in an antenuptial agreement if (a) the parties have made full and fair financial disclosures to each other, and (b) each has had an opportunity to obtain independent legal advice respecting the agreement.

After the marriage, the parties may also waive their right to elect against the other spouse’s estate.  As with a prenuptial agreement, this can only be done after fair disclosure.

Prenuptial and postnuptial agreements can be extraordinarily complicated, so it is important to hire an experienced attorney.