The Reason Why You Can’t Disinherit Your Spouse In a Will

If you've been following along, we've been discussing disinheritance. It all started here: 3 Things to Know about Disinheritance in North Carolina. Some of the most common questions we receive about disinheritance include how disinheritance works when a parent disinherits a child, when a child disinherits a parent, and when an individual wants to disinherit their spouse.  Since we've already discussed the first two points of interest, today we'll discuss the legal side of disinheriting a spouse. More importantly, we'll discuss the reason why you can't simply disinherit your spouse in a will.

What are the legal grounds to disinherit your spouse in North Carolina?

It is legally acceptable in most common law states to disinherit your spouse. However, much as a child or parent can dispute the disinheritance, a spouse can also dispute their disinheritance.

The process of disinheriting a spouse is quite simple, and is frequently confronted at the time of a pre-nup (before marriage) or post-nup (at the time of a divorce) when you ask your spouse to sign a contract agreeing to be disinherited. This legally denies your spouse of receiving any of your estate assets. Yes, these conversations are sensitive and yes, your spouse is likely to refuse these conditions (especially if the marriage is already strained), but the legal grounds to disinherit your spouse in North Carolina are still in effect.

If you are interested in disinheriting a spouse, it is important to work with an estate attorney in order to effectively protect your estate assets. He or she can quickly prepare the necessary documents and get the ball rolling.

How do you get your spouse to agree to be disinherited?

The best possible way to have agreement on disinheritance terms is to have the conversation as part of the marital negotiation. However, it is much more common for one spouse to request that the other spouse sign a Disinheritance Agreement as part of divorce negotiations. This shows a clear intent that none of their assets are designated or intended for their former spouse upon their death.

A negotiated disinheritance may also offer a couple a "better deal" if they intend to separate. For example, if the couple's collective assets are valued at $1M (including the family home), then each spouse would be entitled to $500k upon the sale of the home. However, if one spouse agrees to receive $450K in a lump sum cash payment by agreeing to disinheritance terms rather than waiting for the home to sell, then disinheritance may present a better option to that spouse in the long run.

The reason why you can't disinherit your spouse in a will

While you can disinherit your spouse as part of the marital negotiation, you cannot disinherit your spouse in a will. While laws do vary from state to state, North Carolina is neither a community property or common law state. This means that most times, a judge will divide property and assets according to the equitable distribution method. While this isn't always a 50-50 split, it does mean that the court will divide the property in such a way that it's fair for each spouse.

As such, it's important that you work with an estate attorney in North Carolina to work through the process of disinheritance.

Can you contest disinheritance?

As we've mentioned before, if a spouse has not agreed to being disinherited (the same applies to children or parents who have been disinherited), they can take legal action against the other spouse.  If you are interested in discussing disinheriting a spouse, you have options. Contact our estate lawyer in Raleigh, NC to schedule a consultation.

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