I encourage people to write their hearts’ desires in their estate plan. It is believed that you can distribute your assets as you direct when you pass away if you write a will. This is typically the case. However, there is a big exception. When you are married, the spouse has a right to receive a portion of the estate. The estate is all the money and property owned by a person at death.
It has been my experience that there are many people who sever their marriage simply by walking away. They don’t take the steps of getting a divorce legally. Subsequently, the person they are legally married has the highest priority to manage the estate and more importantly receive significant assets from the estate upon passing. Although The Griffin Firm is not a firm that practices in the area of divorce we strongly suggest that anyone who is ending a marriage take the legal steps to divorce.
That being said, there are marriages that are complicated in the relationship and while there are not the legal steps taken to divorce there is the intent to distribute assets upon passing specifically. With blended marriages when one or both members are entering with children from previous relationships it must be considered how the joint assets will be disseminated. In case of real property the typically succession is right of survivorship. The last spouse standing will be the owner of the real property.
This was the case with my paternal grandparents. My grandmother’s first husband passed away. They had three children together. My grandmother remarried and had 13 subsequent children with my grandfather. My grandmother survived my grandfather. When he passed away (without a will) the 13 children were heirs to the property, not the first three.
Yet, even with a will, most states will not allow you to disown your spouse unless there is an agreement such as a prenuptial or postnuptial agreement. Most states and the District of Columbia offer surviving spouses limited time to select an elective share of the estate. The elective share law or the community property law protect the surviving spouse from being totally disinherited. In the District of Columbia, a surviving spouse or surviving domestic partner may within six months after the will of the deceased spouse or deceased domestic partner is admitted to probate may file in the probate court a written renunciation to the following effect:
“I, A B, surviving spouse or surviving domestic partner of late of (name of decedent), deceased, renounce and quit all claim to any devise or bequest made to me by the last will of my spouse or domestic partner exhibited and proved according to law; and I elect to take in lieu thereof my legal share of the real and personal estate of my deceased spouse or deceased domestic partner.”
This gives the spouse the right to chose whether to receive the inheritance identified in the will or the right that would be received if there had been no will.
There is much to be considered when the desires extend beyond the standard family structure and expectations of the court. This planning needs to be clarified with a professional.