Can I Disinherit My Spouse?: Understanding Spousal Rights in Washington State Estate Law

Many people mistakenly believe they have the power to completely exclude their spouse from their will. However, Washington State law provides significant protections for surviving spouses, making it difficult to fully disinherit a spouse. This blog clarifies spousal rights in Washington estate law, addressing common misconceptions and outlining the legal limitations and requirements.

Common Misconceptions About Disinheriting a Spouse

It's a common misconception that you can easily disinherit your spouse. Washington is a community property state, which means that all assets acquired during the marriage are owned equally by both spouses, with few exceptions. You can't simply will away property that legally belongs to your spouse.

Community Property Rights in Washington

Community property includes income earned during the marriage, real estate purchased during the marriage, and other assets acquired with marital funds. Each spouse owns one-half of the community property. Therefore, you can only dispose of your half of the community property in your will. You cannot disinherit your spouse from their share.

Understanding the Elective Share

Even concerning separate property (assets owned before the marriage or received as gifts or inheritance during the marriage), Washington law provides a safety net for surviving spouses called the elective share. The elective share allows a surviving spouse to make a claim for a portion of the deceased spouse's estate, even if the will excludes them.

The amount of the elective share depends on the length of the marriage and can range often from one-third to one-half of the deceased spouse's net estate. This provision prevents a spouse from being left destitute.

When Disinheritance Might Be Possible

Despite these protections, there are limited circumstances where disinheritance might be achieved:

• Valid Prenuptial or Postnuptial Agreement: A properly executed prenuptial or postnuptial agreement can waive spousal rights, including the elective share. These agreements must be entered into voluntarily and with full disclosure of assets.

• Separate Property: You have more freedom to dispose of your separate property as you wish. However, the elective share can still apply.

• Divorce or Separation: Once a divorce is finalized, you are no longer married and can disinherit your former spouse. If you are separated but not divorced, spousal rights still apply.

  
  

Steps to Consider If You Want to Disinherit

If you're considering disinheriting your spouse, take these steps:

• Consult an Estate Planning Attorney: Seek legal advice from an experienced estate planning attorney in Washington who can explain your options and help you understand the potential consequences.

• Review and Update Your Estate Plan: Ensure your will, trusts, and beneficiary designations are up-to-date and reflect your wishes.

• Consider a Trust: A trust can provide more control over how and when assets are distributed, but it may not completely eliminate spousal rights.

• Document Your Intent: Clearly state your reasons for disinheritance in your will or trust document. This can help prevent challenges to your estate plan.

  
  

The Importance of Legal Advice

Disinheriting a spouse is a complex legal issue with significant emotional and financial implications. An experienced estate planning attorney can help you navigate these challenges, ensuring your wishes are carried out while complying with Washington State law.

If you need assistance with estate planning, call us at 206-703-0764 or contact us online to schedule a consultation.