[The
following guest article was written by Nick Lutz,
a lawyer with Marshall, Parker and Weber
in Wilkes-Barre, Pennsylvania. It is reprinted here with his permission.]
Can you completely disinherit your
spouse? The answer depends on the state you live in but for residents of
Pennsylvania and most other states, the answer is no.
You
can try…
Although I led off
saying you cannot disinherit your spouse, that answer is based on technicality.
The reason is that you can try to disinherit your spouse by leaving them out of
your estate plan. You can choose not to name them in your will, decide to name
others as your beneficiary on insurance policies and investment accounts, or
even create joint accounts that pass by operation of law to someone other than
your spouse.
Generally, there is
nothing stopping you from doing these things. The question, though, is whether
or not engaging in this behavior is going to be effective at producing the
intended result – disinheriting your spouse.
Technicality
of the “elective share”
Although you may try to
ensure your spouse does not receive an inheritance from you, if you are a
Pennsylvania resident when you die your spouse may claim what is called the
elective share, or “forced share.” This amount is equal to roughly one-third of
your estate.
Determining exactly
which assets may be subject to the elective share is tricky.[i] The important
point to remember is that this provision exists in Pennsylvania law and that a
surviving spouse has the ability to make this election against the deceased
spouse’s estate.
Why
attempt to disinherit your spouse?
For many married
couples, the answer is simple – you wouldn’t. Their estate planning goals can
be accomplished with wills and beneficiary designations that leave all of their
assets to each other. But other situations are more complicated.
One reason a married
couple may wish to limit the inheritance the surviving spouse receives is if
that spouse is in the nursing home. It is common practice for the community
spouse (the “well” spouse) to attempt to limit an institutionalized (e.g.
nursing home resident) spouse’s inheritance if the institutionalized spouse is
receiving or may receive Medical Assistance to help pay for his or her
long-term care expenses.
Sometimes complicated
planning is done to help protect the couple’s assets which could be undone if
the community spouse dies before the institutionalized spouse and measures
aren’t taken to minimize the institutionalized spouse’s inheritance. For this
purpose, a special type of will called an “elective share” will is drafted as
part of the planning. These wills are designed to limit the institutionalized
spouse’s inheritance to the amount they are entitled by electing to take their
elective share.
A
word of caution…
Both estate planning
and long-term care planning present complicated issues for families. When
you’re planning for your future, it’s best not to go at it alone. If you are
wrestling with any of the issues presented in this article, you should seek the
advice of an experienced attorney to guide you. If you live in Pennsylvania,
the attorneys at Marshall, Parker &
Weber would be happy to meet with you to discuss your estate planning
and/or long-term care planning concerns.
[i] A description of property that may be
subject to the elective share in Pennsylvania is found in 20 Pa.C.S.A. §2203. A more in-depth
discussion of exactly what property is subject to the elective share or
discussion of calculating the elective share is beyond the scope of this article.
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