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Disinheriting a Spouse

Why would a person disinherit a spouse? Can you disinherit a spouse and if so, how?

There are a myriad of reasons why someone would want to disinherit a spouse. It might be a second marriage and they think that children from the first marriage should take priority over the new spouse. The spouse might be abusive. They might not trust the spouse with financially taking care of the home and children. They might be in the middle or contemplating a divorce.

In the Commonwealth of Massachusetts, unfortunately (or fortunately for the spouse), a person cannot completely disinherit their spouse. If a person draws up a will or trust without providing anything for the spouse, the spouse can, after the testator’s death, seek to void the will and take an elective share of the estate. Depending on if there are children involved, the spouse will take a certain percentage of the estate.

There are two sound ways to make sure that the spouse you want to disinherit doesn’t wreak havoc on your estate if you were to die and quite possibly cause massive heartache for your heirs. One obvious way is to simply give them something. Give them the minimum that the spousal elective share provides in Massachusetts and thereafter, you can plan around that share. The second way is to simply get a divorce. Divorce is the sure way to make sure that the spouse cannot claim against the estate.

If you are in the process of getting a divorce or planning your estate, tell and ask your attorney about the spousal elective share that worries you. A good divorce or estate planning attorney will create a plan in place before the divorce is finalized and revise the plan once the divorce has been finalized.

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