Can You Disinherit A Spouse In California?

You may already know that in California, spouses will be entitled to get a share of your estate, no matter what you say to the contrary in most estate documents. It isn’t easy to disinherit a spouse—that is, to keep them from inheriting anything from you. But it can be done.

Why Disinherit a Spouse?

There are reasons why someone may want to disinherit a spouse, and no, not all of them are malicious or vengeful. For example, imagine the following scenarios:

1)      The (soon to be disinherited)  spouse already has money and assets, and doesn’t need whatever you would pass to them—certainly, they don’t need it as much as whomever you would alternatively leave your assets to;

2)      Some people are still legally married, but have been separated for many years, never making the divorce officially, legally, final;

3)      Someone has children of a previous marriage, and wants to take care of them before the new spouse, if it is a remarriage

How to Disinherit

You cannot simply draft a will and say that your current spouse gets nothing. The only way to do it and to ensure that it is legally enforceable, is through prenuptial and postnuptial agreements.

If you aren’t married yet, a prenuptial may work for you. If not, you will need a postnuptial agreement.

What is a Postnuptial Agreement?

A postnuptial agreement is just like a prenuptial agreement, only it is an agreement done while the parties are married.

Unlike  traditional estate documents, where you can do whatever you want to, with a postnuptial, there are prerequisites and requirements to making the agreement valid-it is a contract, and there are two sides to that contract. Courts don’t like married couples contracting against each other.

The postnuptial agreement must be entered into voluntarily and without coercion. That means that spouses should have enough time to read the agreements, consult a lawyer, and make the decision to sign it on their own accords.

There should be full and complete disclosure between the parties of all assets that each owns. Simply saying ”we’re married, he knows everything I have already,” is not sufficient. Every asset and liability, tangible or intangible, must be disclosed.

The agreement must also be generally fair to both sides. If it favors one side too much, it may be invalidated. However, if you are disinheriting a spouse completely, and there is a good reason stated (for example, the other spouse already has sufficient money, means or assets), the agreement will be enforceable.

You also may want to consider leaving something, even a modest amount to the spouse, instead of absolutely nothing.

Avoid Challenges

You can be sure that if not done properly, the disinherited spouse will be the first one to challenge the estate documents in probate court. That’s why you want to make sure you are doing it the right way.

We can help you draft and create an estate plan that works for you. And for your needs. Call the Torrance will and estate attorneys at Samuel Ford Law today for a full review of your estate plan.

Sources:

thebalancemoney.com/can-you-disinherit-your-spouse-3505158

jdsupra.com/post/fileServer.aspx?fName=2c0e2c79-2376-4f9b-aaec-629d9027cf10.pdf