A Spouse Overruling a Will

A Spouse Overruling a Will

Under the laws of most states, a surviving spouse is entitled to a percentage of a person's estate no matter what the person's will states. This percentage can range from one-quarter to one-half, and is usually called an elective share or a forced share. The share is only calculated on the assets passing through probate in some states, but in others, the share includes property that avoids probate. In states that recognize community property, the surviving spouse does not have the right to an elective share. Rather, the surviving spouse is entitled to one half of the couple’s community property.

In some states, the share depends on whether the property is marital property or separate property. This is determined by whether the property was acquired before or during the marriage, mixed with marital property, or came from some source outside the marriage. In some states, a spouse can claim a portion of the estate only for the term of his or her life.

Example 1: John owns a $1,000,000 ranch with his brother in joint tenancy with right of survivorship and $1,000,000 in stock in his own name. His will leaves his stock to his children by a prior marriage, but nothing to his wife because she is wealthier than him and does not need the money. Unless John has a premarital or marital agreement, his wife would be entitled to claim one third of the stock (in some states). In other states, his wife could claim half of the stock and half of the ranch.

Example 2: Mary puts half of her property in a joint account with her husband and in her will, she leaves all of her other property to her sister. When she dies, her husband gets all the money in the joint account and 30% of all her other property.

If you do not plan to leave your spouse at least the amount of property your state allows by statute, you should consult a lawyer.

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