Can your spouse be cut out of your will? Generally, no. Most states give a surviving spouse a legal right to claim a spousal share (or elective share) of a portion of the estate regardless of what the will says. Some states have community property laws that give spouses ownership of one-half of marital earnings. Children generally don't have an automatic right to inherit, but laws in most states protect against accidentally disinheriting a child born after a will was made.

A Spouse’s Right to Inherit a Spousal Share

In most circumstances, a surviving spouse cannot be completely cut out of a will. To protect spouses from being disinherited, most states give a surviving spouse the right to a spousal (or elective) share. The spousal share varies by state, but it often allows a surviving spouse to claim one-third to one-half of the deceased spouse's estate, no matter what the will provides. In some states, the amount the surviving spouse can claim depends on how long the couple was married. (For other limitations on what a will can do, see What a Will Won't Do.)

These provisions kick in only if the survivor goes to court and claims the share allowed by law. If a surviving spouse doesn't object to receiving less, the will is honored as written.

Example of How Spousal Share Works

Johanna's will leaves $80,000 to her fourth husband, Fred, and divides the rest of her property, totaling almost $500,000, among her three sons from previous marriages. If Fred is happy with his inheritance, everything will go according to Johanna's plan. But if Fred wants more, he can claim a share of Johanna's estate—and get substantially more than $80,000. If he does, Johanna's three sons will take what's left.

If you don't plan to leave at least half of your property to your spouse in your will, and have not provided for your spouse generously outside your will, you should consult a lawyer unless your spouse willingly consents, in writing, to your plan.

You can make your will, quickly and easily, using Nolo's Quicken WillMaker &Trust.

A Spouse's Right to Inherit in Community Property States

In most states, there’s no rule that property acquired during marriage is owned by both spouses. However, community property states—Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin—have their own rules about what spouses own and can claim. (In Alaska, spouses can also sign an agreement creating community property, and in Kentucky, South Dakota, and Tennessee, spouses can create a special community property trust.) Basically, each spouse automatically owns half of what either one earned during the marriage, unless they have a written agreement to the contrary. Both spouses can do whatever they like with their own half-share of the community property and with their separate property. (For help sorting out what's community property and what's separate property, see Marriage & Property Ownership: Who Owns What?)

Do Ex-Spouses Have Inheritance Rights?

In most states, getting divorced automatically revokes gifts made to a former spouse in your will. But to be on the safe side, if you get divorced, make a new will that revokes the old one. Then you can simply leave your former spouse out of your new will.

Can You Disinherit Your Children?

Generally, you can disinherit your children because children typically have no right to inherit anything from their parents. In certain limited circumstances, however, children may be entitled to claim a share of a deceased parent's property. For example, the Florida constitution prohibits the heads of families from leaving their residences to anyone other than a spouse or minor child if either is alive.

Most states do have laws to protect against accidental disinheritance. These laws usually kick in if a child is born after the parent made a will that leaves property to siblings, and the parent never revises the will to include that child. The law presumes that the parent didn't intend to freeze out the newest child, but just didn't get around to revising the will. In that situation, the overlooked child may have a right to a significant part of the parent's assets.

In some states, these laws apply not only to children, but also to any grandchildren of a child who has died.

If you decide to disinherit a child, or the child of a deceased child, your will should clearly state your intention. And if you have a new child after you've made your will, remember to make a new will.

Next Steps

To start planning your estate today, try Nolo’s Quicken WillMaker & Trust, which can help you make wills, health care directives, powers of attorney, transfer on death deeds, and other vital estate planning documents without hiring an attorney.

If you are uncomfortable with do-it-yourself products or have a complicated estate, you can hire an attorney to help you with your estate plan. In that case, make sure you hire an attorney who is licensed in your state and who understands estate planning law.