Your Spouse, Will and You

Highlights
  • Your spouse will almost always have a legal right to inherit a portion of your estate.
  • When you divorce, you should rewrite your will as soon as possible.
  • Your non-citizen spouse has a right to inherit from your estate as a citizen would.
  • The type of will you and your spouse make may depend on your family structure and assets.

When you marry, you and your spouse will have rights and duties toward each other that no other person in the world has. This includes the right to inherit from your spouse after he or she passes away. Even if a spouse has been intentionally excluded from a will, almost all states give spouses the legal right to inherit a portion of their deceased spouse’s estate. It’s important to learn how being married affects how you can distribute your property in your will, as getting it wrong can create confusion and false expectations.

A Spouse’s Inheritance Rights

With limited exceptions, your spouse has a legal right to inherit part of your property after you’re gone, with or without a will. Only spouses that have expressly agreed to be excluded from the will through a written agreement are assumed to have forgone their right to an inheritance.

Otherwise, the question is: how much is the surviving spouse entitled to? The answer depends on multiple factors, but primarily it hinges on whether the testator left a valid will, and which state law applies.

Community Property States

If the deceased spouse left a will and lived in one of the 10 community property states (Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington, and Wisconsin, along with opt-in community property states Alaska and Tennessee), the surviving spouse is typically entitled to receive half of all marital property in the decedent’s will. That means if a surviving spouse doesn’t receive at least 50 percent of the marital property in the decedent’s will, the spouse may contest the will and make a claim in court for his or her outstanding statutory share.

Marital property is generally considered all the assets earned or acquired during the marriage. Separately owned property purchased before the marriage, inheritances or gifts that were given to only one spouse, or property that the couple expressly agreed only belonged to one spouse, usually aren’t included in marital property. Such separate property may be willed to the beneficiary of the testator’s choosing. Non-probate assets such as life insurance or retirement proceeds also aren’t included in the marital estate as they pass to whichever beneficiary the testator chose under those accounts.

If a spouse in a community property state didn’t leave a valid will, then state intestacy laws determines how much the surviving spouse is entitled to receive. Generally, this depends on the existence other close surviving relatives, such as children. The surviving spouse will receive at least 50 percent of the marital property, as well as a share of the separate property.

Common Law Property States

States that aren’t community property states are considered “common law property” states. Common law property states allow couples to own separate property, even if acquired during the marriage. For example, if a wife purchases a house and the title is in her name only, the house is not considered marital property. The wife is the sole owner of the house. Nonetheless, in almost all common law property states (except for Georgia), a spouse cannot completely disinherit the surviving spouse, even if the deceased spouse’s assets consist entirely of separately-owned property. The surviving spouse is legally entitled to a portion of the estate called an “elective share.”

The amount of an elective share varies from state to state, but typically ranges from one-third to one-half of the decedent’s estate. Thus, if a decedent leaves a spouse less than the elective share amount in his or her will, the surviving spouse may make a claim for the difference in probate court. The claim must be made within a certain period (usually six months) after the testator’s death or after probate of the will, otherwise the spouse loses his or her right to the share.

When there’s no valid will, surviving spouses in common law property states are entitled to inherit under the state’s laws of intestacy. Usually, spouses are entitled to at least one-third of the assets of the estate, but often the entire estate passes to them.

Your Ex-Spouse and Your Will

When you get divorced, most states automatically extinguish your spouse’s right to an inheritance under a will or through state intestacy laws. Even if you don’t update your will, your former spouse will have no legal right to any portion of your estate.

That said, you should still rewrite your will as quickly as possible following your divorce. If the will naming your former spouse as a beneficiary goes to probate, the court will treat the will as if your ex-spouse passed away before you. That means the share that would have been allotted to your ex-spouse will likely pass as dictated by your state’s intestacy laws.

If you’re in the process of getting divorced, it’s a good idea to write an “interim will” to restrict the amount of property your soon-to-be former spouse would receive if you died before the divorce was final. Your soon-to-be ex-spouse would still probably be able to claim his or her elective share since you were still married at the time of your death, but you can make sure the rest of your property goes to beneficiaries of your choosing.

Your Non-Citizen Spouse and Your Will

Spouses who aren’t US citizens are entitled to receive willed property from their deceased spouse just as if they were citizens. The only difference for non-citizen spouses is that they cannot be exempt from the Federal Estate & Gift Tax. This tax applies to inheritors who have received over $5.45 million from a decedent. Surviving spouses who are US citizens are exempt from this tax under the unlimited marital deduction, but non-citizen spouses receiving more than $5.45 million will have to pay up.

Given these high amounts, this distinction obviously only applies to a very slim minority of people. Otherwise, having a non-citizen spouse does not affect what you can leave your spouse under your will, or the amount she or he has a legal right to inherit.

Making a Will With Your Spouse

You may wonder whether you and your spouse should have matching wills. The short answer is: it depends.

A couple with uncomplicated assets and a simple family structure may choose to create reciprocal or “mirror” wills. These types of wills are two individual testamentary documents, one for each spouse, that mirror each other. In other words, each spouse agrees to leave the majority of their estate to the surviving spouse. When the surviving spouse dies, the property would then pass to the couple’s children or another agreed-upon party. This type of will works best for couples who don’t have many other beneficiaries to consider, such as children from a previous marriage, or who don’t have assets with a designated beneficiary outside of the marriage.

A reciprocal will probably isn’t a good idea for couples that have a blended family or who can’t agree on who should get the estate after both spouses are deceased. In such situations, you and your spouse should create individual unique wills that meets each of your specific needs and obligations.