Friday, August 28, 2015

Can You Legally Disinherit Your Wife or Husband?

[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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