While many people intend to leave everything they own to their spouse, some married couples have different intentions. Perhaps this is the couple’s second marriage, and they intend to leave their assets to their respective children. Maybe the husband or wife received an inheritance that they intend to pass on to their children rather than their spouse. They may want to pass a business on to someone specific other than their spouse.
Disinheriting a spouse is a complex process that requires the aid of an estate planning attorney. While a husband could technically draft a will that leaves everything to his children and nothing to his wife, that would not stop his wife from receiving a portion of his estate.
Spousal elective share means that a spouse may choose (a) what the deceased spouse left them in the will, or (b) to elect against the will. If the surviving spouse elects against the will, they are typically entitled to between one-third and one-half of the deceased spouse’s estate – even if the will left the surviving spouse nothing or only a small portion of the estate.
So what can a husband or wife do to ensure that their property does not pass to their spouse? First, if both spouses generally agree on leaving their property to someone other than each other, then the couple can work with attorneys to create a prenuptial or Ohio’s new postnuptial agreement, under which they agree to leave some or all of their separate assets to someone other than their spouse. Second, a married couple can use a trust to leave their assets to someone other than the spouse. A best practice is to have both a trust and a prenuptial or postnuptial agreement.
The process of disinheriting a spouse is complex, and this blog post does not cover all the nuances or options involved. Consult with an estate planning attorney if you are contemplating disinheriting a spouse for any reason.