You may not realize how many questions you have about estate planning until you begin the process. One common question is whether or not it is possible to leave your spouse nothing in your will. This may seem like a simple question; after all, it is a yes or no question. However, this matter is actually incredibly complicated. This guide will go over the basics, but you will not be able to know for sure if it is possible in your situation without either doing research on your state laws or speaking with an estate planning attorney.
The state you live in affects this matter enormously. The laws vary from one state to the next, meaning it may or may not be possible depending on your location. However, it is most common for it to be impossible to leave your spouse nothing in your will. There are generally two categories that states can fall into:
- Common law property states
- Community property states
The first thing you need to do is determine which type of state you live in.
Common Law Vs. Community Property States
In common law property states, spouses usually have the right to a portion of the deceased’s estate. This percent is usually either one third or one half. However, spouses have a choice in the matter. A spouse can either take what the will grants them or can take what the state grants them. If someone chooses what the will grants them, it is called taking under the will, while taking what the state grants them is called taking against the will. So, hypothetically, you could leave your spouse out of your will and as long as they chose to take under the will, they would receive nothing. An agreement can be arranged with a spouse for this to happen in advance.
In community property states, the estate is divided evenly between spouses. This means that when one partner dies, the estate already belongs partially to the spouse. This basically invalidates the issue entirely. In community property states, it is possible to leave your spouse out of your will, but they will still have a claim to the portion of the estate they legally own.