Providing effective legal solutions grounded in integrity.

Virginia Beach Pier

Is it possible to disinherit your spouse?

On Behalf of | Sep 24, 2021 | Estate Planning

Legally, marriage in Virginia creates close ties between two people as well as shared rights over property and assets. This comes into play during estate planning, especially for people who are considering taking steps to ensure that their surviving spouse will not inherit what they leave behind. Disinheriting a spouse is a tough problem, and the extent to which it is possible depends on the state as well as other conditions like the type of asset.

Understanding the role of probate

In general, it is very difficult to completely disinherit a spouse. You can create a prenup or postnup contract in which both partners agree that the surviving partner does not receive any of the deceased partner’s property, but even in that case, some states allow the surviving spouse to still claim a portion of the assets.

In Virginia, the estate planning process often involves considering probate. Some people put their assets into a trust as a way to avoid probate. However, a spouse who has been disinherited still has the right to claim a portion of both probate and non-probate assets. Probate assets are those that require a probate court for transfer upon death while non-probate assets are all others, such as retirement benefits with a specified beneficiary, where the transfer is automatic.

Knowing the law

The extent to which you can disinherit your spouse depends on what kind of assets you have and whether they go through probate or not. In general, however, it is not possible to completely disinherit a spouse, even if you want to, because the law provides them with the right to claim a portion of both kinds of assets.