Many states protect surviving spouses from being completely left out of a will. The details differ by state.
Elective share
In many states, a surviving spouse can choose a fixed share of the estate, often one third to one half, instead of what the will provides. The share may apply to assets beyond the probate estate. Community property states take a different approach by recognizing each spouse's half of community property.
Other protections
- Homestead rights to remain in the family home.
- Family allowances or support during estate administration.
- Exempt property, such as a vehicle or household items.
- Rights as a beneficiary under retirement plans.
Limits
A prenuptial or postnuptial agreement can waive some of these rights. Deadlines to elect against the will are short, often within months of the will being admitted to probate.
What to do
- Find out whether a will exists and what it provides.
- Check your state's deadline for an election.
- Gather information about all assets, including nonprobate ones.
- Consult a probate attorney quickly.
Frequently asked questions
Can a will fully disinherit a spouse?
Not in most states if the spouse elects against it.
Do unmarried partners have these rights?
Generally no.