This is question often goes unasked, but the harsh truth is, not everyone wants to leave their spouse with all of their worldly goods.
There is no legal requirement that spouses must leave all of their assets to each other when they die, as discussed in a recent article from nj.com, “Do I have to leave any money to my spouse? Or can I give it all away?” However, there are laws in some states about what the surviving spouse is entitled to.
Depending on state law, the surviving spouse may be entitled to an "elective share" of the deceased spouse's estate, even if the surviving spouse is disinherited under the deceased spouse's will.
The surviving spouse usually can’t claim an elective share, if the spouses were living separate and apart in different residences, or had stopped living together as a married couple, or had a valid prenuptial or post-nuptial agreement that waived the elective share. In many states, the elective share is equal to one-third of the "augmented estate.”
The augmented estate is the deceased spouse's estate, less funeral and estate administration expenses and enforceable claims. Certain transfers of property for less than fair market value made by the deceased spouse are added back to this amount. The surviving spouse's assets are then deducted from the elective share.
If the surviving spouse's assets, including any assets that were inherited by the surviving spouse from the deceased spouse, are more a one-third of the augmented estate—then the surviving spouse isn’t entitled to an elective share.
A complaint for an elective share must be filed within six months of the appointment of an executor in the county where the appointment was made. That’s a pretty short time.
Because of the relatively short time in which to file the elective share complaint, an experienced estate planning attorney should be engaged immediately after the deceased spouse's death, to see if the surviving spouse is entitled to an elective share.
In this situation, the responsibility is on the surviving spouse to file an elective share action. In some states, like New Jersey, if the surviving spouse fails to file an elective share action within six months from the time of probate, they lose the right to that share.
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Reference: nj.com (April 25, 2018) “Do I have to leave any money to my spouse? Or can I give it all away?”
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