Can You Disinherit a Spouse or Child? Inheritance Rights

Can a will shut a spouse out completely? Usually not. Most states let a surviving spouse claim a legal share of the estate, often called a spousal or elective share, no matter what the will actually says. A smaller group of states use community property rules instead, which give each spouse automatic ownership of half of what was earned during the marriage. Children are treated differently: they have no automatic right to inherit, but most states have safeguards that catch a child who was accidentally left out simply because they were born after the will was signed.

This overview draws on guidance from legal editors who focus on estate law, though the specifics always depend on where you live.

• A spouse's right to claim an elective share
• A spouse's claim in community property states
• What happens to an ex-spouse's inheritance rights
• Can you leave a child out of your will
• What to do next

A spouse's right to claim an elective share

In most states, getting divorced automatically cancels any gift left to a former spouse in a will.

In nearly every situation, a surviving spouse can't be written out of a will entirely. States created the elective share, sometimes called a spousal share, specifically to stop that from happening. The exact portion varies by state, but it typically falls somewhere between one-third and one-half of the deceased spouse's estate, regardless of the will's terms. In some states, the length of the marriage affects how much the surviving spouse can claim.

This protection only kicks in if the surviving spouse actually goes to court and asks for it. If they're content with whatever the will leaves them, the will is carried out as written.

How an elective share plays out in practice

Johanna's will leaves $80,000 to her fourth husband, Fred, and splits the remainder of her estate, close to $500,000, among her three sons from earlier marriages. If Fred is satisfied with his $80,000, Johanna's plan proceeds exactly as she wrote it. But if Fred wants more, he can go to court and claim a share of the estate, which would give him significantly more than $80,000. If he does, the three sons divide whatever remains.

If your plan is to leave your spouse less than half of your estate, and you haven't already provided for them generously through other means, talk to a lawyer before finalizing your will, unless your spouse has agreed in writing to the arrangement.

Many people put together their own wills, though the exact process and required documents differ depending on your state.

A spouse's claim in community property states

In most states, there's no automatic rule that property earned during a marriage belongs equally to both spouses. Community property states work differently. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin all follow community property rules. Alaska allows spouses to opt into community property through a written agreement, and Kentucky, South Dakota, and Tennessee let couples set up a special community property trust. Under these rules, each spouse automatically owns half of whatever either one earned during the marriage, unless they've agreed in writing to something different. Each spouse can do as they wish with their own half of the community property and with any separate property they hold individually.

What happens to an ex-spouse's inheritance rights

In most states, a divorce automatically cancels any gifts a will had left to a former spouse. Still, the safer move is to write a new will after a divorce that formally revokes the old one. That way, you can leave your former spouse out cleanly, without relying on a rule stepping in for you.

Can you leave a child out of your will

In general, yes. Children don't have an inherent right to inherit anything from a parent. There are limited exceptions, though. Florida's constitution, for instance, bars the head of a family from leaving their home to anyone besides a surviving spouse or minor child, if either is still living.

Most states also have rules that guard against unintentional disinheritance. These typically apply when a child is born after a parent signs a will that leaves everything to that child's siblings, and the parent never updates the will to include the newest child. The law assumes the parent simply hadn't gotten around to revising the document, not that they meant to exclude the child. In that case, the overlooked child may be entitled to a substantial share of the estate.

In some states, this same protection extends to the children of a child who has already died.

If you intend to leave a child, or the children of a child who has passed away, out of your will, say so clearly in the document. And if you have another child after signing your will, make a point of updating it.

What to do next

Estate planning usually involves more than a will. Depending on your situation, you may also want a health care directive, a power of attorney, or a transfer-on-death deed. Many people put these documents together on their own, without hiring a lawyer.

If do-it-yourself planning doesn't feel right for you, or your estate is complicated, an attorney can help. Look for one who is licensed in your state and who works specifically in estate planning, since the rules covered here vary a great deal depending on where you live.