It is not uncommon for a disgruntled husband or wife to think about ways to disinherit their spouse. While such a plan should never be pursued without professional legal counsel, many people in this situation don't want anyone else to know their plans, even their own lawyer. Many spouses try to use title to property as a way to prevent their spouse from getting anything when he or she dies.
For the reasons explained in this article, it is best to avoid attempts to use property title as a method of disinheriting a spouse without guidance from an attorney. The same applies to registered domestic partners.
First, state law generally prevents you from entirely disinheriting your spouse or domestic partner. See disinherit a spouse and spousal share.
Second, if you execute a will, living trust, and other estate planning documents premised on property title changes or disinheritance provisions that may be deemed void or unenforceable by a court, your other heirs and beneficiaries may suffer the consequences by receiving a smaller inheritance than you intended, and in some cases, no inheritance at all.
Attempts to leave your surviving spouse less than the law allows could cause your estate to incur costly legal fees if your will or trust is contested. Taxes assessed on your estate could also be higher than necessary if your surviving spouse takes an elective share rather than receiving a devise from your will or living trust made as part of a carefully thought out estate plan drafted by an attorney.
If your objective is to disinherit your husband, wife or partner, have an attorney help you make an estate plan that takes your spouse's statutory share or community property into consideration. An estate planning lawyer may be able to assist you with planning methods such as certain types of trusts, life insurance, offshore accounts, gifting, and choice of domicile that can be effective in reducing a surviving spouse's inheritance.
POD Bank Accounts
A spouse attempting to disinherit a surviving spouse will often transfer funds to pay on death accounts and name a person other than the surviving spouse as beneficiary. However, the surviving spouse may opt to take an elective or forced share of the deceased spouse's estate, which may include funds deposited in a payable on death account in an attempt to disinherit the surviving spouse. The laws on this vary by state.
Real Estate Deeds
If you own real property with your spouse, he or she will often be required to sign any deed to sell or transfer the property, but not always. Whether or not your spouse is named on the deed, title and escrow companies often require both husband and wife sign the deed to ensure clear title. If the real estate is located in a community property state, the signature of both spouses is usually required on deeds to transfer or sell property.
Gifting
Spouses attempting to reduce their surviving spouse's inheritance sometimes make gifts to others. While you might assume your spouse cannot inherit something you give away during your lifetime, that is not always correct. A surviving spouse's right to community property, or to a statutory share of the deceased spouse's estate, may allow certain gifts to be recovered. The amount of time between the date of the gift and the date of the donor spouse's death is a key factor in whether the surviving spouse has a claim against the gifted property. Before making gifts to disinherit your spouse, consult an attorney.
