Avoiding a Spouse’s Share

Avoiding a Spouse’s Share

While some feel it is wrong to avoid giving a spouse the share allowed by law, there are legitimate reasons for doing so (such as where there are children from a prior marriage) and the law allows exceptions.

The safest way is for both spouses to sign a written agreement, either before or after the marriage, waiving any share the law may give them in each other's estates. In some states, a spouse's share can be avoided partially or completely by owning property in joint tenancy or in a trust. It is necessary in some cases, but not in all, to have the spouse sign over any interest he or she may have.

Example: Dan owns his stocks jointly with his son. He owns his bank accounts jointly with his daughter. If he has no other property, in many states, his spouse gets nothing since there is no property in his estate.

This is what would happen in a state where the spouse is entitled to a share of the probate estate. However, in some states, the spouse would be entitled to a share of the augmented estate. These are all assets that passed upon the death of the owner (such as joint property, life insurance and beneficial interests in trusts). Keep in mind that these laws can change at any time, so if this is a concern for you, check with an estate planning attorney.

Another way to provide for someone other than your spouse is with a life insurance policy naming that someone explicitly as the beneficiary. However, in some states, this can also be included in the estate.

Avoiding a spouse's share, especially without his or her knowledge, opens the possibility of a lawsuit after your death. If your actions were not done to precise legal requirements, a court could overrule the will. Therefore, you should consider consulting an attorney if you plan to leave your spouse less than the share provided by law.