If you intend to leave your spouse or registered domestic partner very little or no property, you may run into some legal roadblocks. All common law property states protect a surviving spouse or partner from being completely disinherited—and most assure that a spouse has the right to receive a substantial share of a deceased spouse’s property. Community property states offer a different kind of protection.
(To learn whether you're in a community property state or common law state, see Property Ownership Rules for Spouses.)
In a common law state, a shortchanged surviving spouse or domestic partner usually has the option of either taking what the will provides, called “taking under the will,” or rejecting the gift and instead taking the minimum share allowed by state law, called “taking against the will.” In some states, your spouse or partner may have the right to inherit the family residence, or at least use it for his or her life. The Florida constitution, for example, gives a surviving spouse the deceased spouse’s residence.
Laws protecting spouses and domestic partners vary among the states. In many com mon law property states, a spouse is entitled to one-third of the property left in the will. In a few, it is one-half. The exact amount of the spouse’s minimum share may also depend on whether there are also minor children and whether the spouse has been provided for outside the will by trusts or other means.
Of course, these are just options; a spouse who is not unhappy with the share he or she receives by will is free to let it stand. And in almost all states, one spouse or partner can give up all rights to inherit any property by completing and signing a waiver. If you want to make that type of arrangement, consult a lawyer.
Some states provide additional, relatively minor protections for immediate family members. These vary from state to state in too much detail to discuss here. Generally, however, these devices attempt to ensure that your spouse and children are not left out in the cold after your death, by allowing them temporary protection (such as the right to remain in the family home for a short period) or funds (typically, living expenses while an estate is being probated). In many common law states, how much the surviving spouse is entitled to receive depends on what that spouse receives both under the will and outside of the will—for example, through joint tenancy or a living trust—as well as what the surviving spouse owns. The total of all of these is called the augmented estate. While the augmented estate concept is rather complicated, its purpose is easy to grasp. Basically, almost all property of both spouses is taken into account, and the sur viving spouse gets a piece of the whole pie.
Most community property states do not give surviving spouses or registered domestic partners the right to take a share of the deceased spouse’s or partner’s estate. Instead, they try to protect spouses and domestic partners while both are still alive, by granting each spouse or partner half ownership of property and earnings either spouse or partner acquires during the marriage. (See “Community Property States,” above.) However, in a few states—under very limited circumstances—a surviving spouse or domestic partner may elect to take a portion of the deceased spouse’s community or separate property. These laws are designed to prevent spouses and domestic partners from being either accidentally overlooked—for example, if one spouse or partner makes a will before marriage or partnership and forgets to change it afterward to include the new spouse or partner—or deliberately deprived of their fair share of property. These protections are available in Alaska (Alaska Stat. § § 13.12.201 and following), Arizona (Ariz. Rev. Stat. § 14-2301), California (California Prob. Code § § 21610 and following), Idaho (Idaho Code § § 15-2-202 and following), New Mexico (N.M. Stat. § 45-2-301), Washington (Wash. Rev. Code § § 26.16.240 and following) and Wisconsin (Wis. Stat. § § 861.02 and following). If you want to learn more about them, consult a lawyer.
If you do not plan to leave at least half of your property to your spouse or domestic partner in your will and have not provided for him or her generously outside your will, consult a lawyer.