I’d like to think my wife and I are on pleasant enough terms where I am never going to ask myself this question: can I disinherit my spouse?
But the decision to disinherit somebody doesn’t always come about because you don’t like each other; there can be other reasons why it makes sense to leave your assets to someone other than your spouse.
REASONS TO DISINHERIT YOUR SPOUSE
There are legitimate reasons why someone might consider disinheriting their spouse:
There are legitimate reasons why someone might consider disinheriting their spouse:
- Sufficient Personal Assets: Your spouse may already have enough assets in their name, and you’ve both agreed that your assets would better serve another purpose—such as funding a trust for your grandchildren’s education or supporting a favorite charity.
- Estate Taxes: Leaving assets to someone else or to a trust can help prevent your spouse’s estate from becoming so large that it incurs estate taxes upon their passing. Learn more about estate planning considerations for second marriages.
- Financial Protection: You may worry that your spouse could be taken advantage of after your death and want to ensure that assets are managed by a trustee for their benefit. For insights into this type of arrangement, see whether appointing a family member as trustee is the right move.
SPOUSAL RIGHTS
The most important part of this answer is this: in Minnesota, you cannot — ever — disinherit your spouse through your will or trust document (by itself). In Minnesota your spouse has a guaranteed right to his or her spousal share. This means that even if your will is drafted to give all of your money goes to charity, and you change all of the beneficiaries of you IRAs and life insurance (your “non-probate” assets) to the names of your children, your spouse still has certain rights including the right to live in the house for his or her life and for some monthly support from the estate.
According to Minnesota law, your spouse also has a right to a percentage of the augmented estate. The augmented state is (simplified) the value of your stuff plus the value of your spouse’s stuff. If you and your spouse have been married for only a year, your spouse has a guaranteed right to three percent of the augmented estate. This percentage increases every year of marriage until year fifteen, in which your spouse has a guaranteed right to fifty percent of the augmented estate — regardless of what you’ve written in your will or other planning documents, and regardless of how you’ve written your beneficiary designation for your non-probate accounts. It follows that if at the fifteen-year mark the surviving spouse has more than fifty percent of your combined assets in his or her name already, then those assets already exceed half of the augmented estate and there is no additional claim to a spousal share.
WAIVER OF RIGHTS
Although your spouse has guaranteed rights, there are three ways they can forfeit their share:
- Pre-Nuptial Agreement: A properly drafted pre-nuptial agreement can allow spouses to waive their rights to each other’s property.
- Post-Nuptial Agreement: After marriage, spouses can agree to forfeit property rights, including the right to their spousal share.
- Consent to Will: Your spouse can sign an agreement accepting the terms of your will, even if it disinherits them entirely.
Each of these options requires your spouse’s affirmative consent and should be reviewed by their own legal counsel to ensure they understand the implications. For more on navigating complex spousal and estate matters, visit our Minnesota Estate Planning Law Firm.
Things to Keep in Mind
If you’re considering disinheriting your spouse, it’s a major decision with significant legal and emotional consequences. Careful planning and sound advice are crucial. Additionally, if your estate involves prior relationships, consider the complexities of how ex-spouses may impact your estate.
For married couples, deciding between joint or separate trusts can also play a role in how your assets are allocated and protected.
Disinheriting anyone is a big decision that can carry big legal consequences. Make sure you contact an attorney who is experienced in estate planning before making any major decision that affects your loved ones. Done properly, there are ways your assets may better serve your family than if they are all left to your husband or wife. Please contact me so I can help.
Philip J. Ruce creates wills and trusts for families who want to feel secure that their loved ones are cared-for. Philip is a trust and estate attorney based in Minneapolis, Minnesota. Philip is the author of Trustee University: The Guidebook to Best Practices for Family Trustees. available at Amazon.com in paperback or Kindle edition. He also works with trustees and beneficiaries who need help with their trusts. You can contact him here.
