Burlington elder law attorneys help married couples and single individuals to make plans for what will happen to their property after death. In many cases, when two people are married, they will create simple wills leaving most or all of their assets to each other. In some cases, however, a person who is married may not necessarily want to leave a lot of his or her wealth to a surviving spouse. This could occur for a number of reasons, including the spouses being estranged but not divorced or including a desire to leave the bulk of assets to children from another marriage.
If you are considering leaving your money or your property to someone other than your spouse, you need to be aware that this may not be as easy as it seems. You should talk with Unsworth LaPlante, PLLC to find out what the rules are for disinheriting a spouse and to determine what your best course of action is to ensure that your wishes are respected for your wealth after you pass away.
Unsworth LaPlante, PLLC can provide you with guidance on wha the law will allow you to do and can help you to work within the law to leave money to the people who you want to, even if those people are not your husband or wife.
A Spousal Elective Share Makes Disinheriting a Spouse Difficult
Disinheriting a spouse is difficult as a result of rules in Vermont law that protect the rights of a surviving spouse to inherit. Traditionally, laws called dower and curtesy existed throughout Vermont and the U.S. to ensure that a spouse couldn’t easily be disinherited and lose out on getting access to money and property acquired during the marriage. However, dower and curtesy have been repealed within Vermont, as well as in some other states throughout the country.
Although dower and curtesy are not valid laws any more, Vermont law still protects surviving spouses from being disinherited. Under the current law, a spouse can opt not to take an inheritance left to him or her in a deceased spouse’s will, and to instead take an elective share. The elective share is 50 percent of probate assets, minus costs and other valid claims against the estate.
If a spouse exercises his or her elective share, that spouse makes a claim with the probate court during the probate process. The spouse declines the inheritance that would have been provided to him or her in the will (if any inheritance was provided at all), and opts to take the elective share which Vermont law says that he or she is entitled to.
Because a spouse can opt to exercise his or her elective share, using a will to try to disinherit a spouse is not typically going to be effective. If you have left almost no assets to your husband or wife despite having substantial wealth, you can expect your spouse is going to try to make a claim to more assets when allowed by law.
Is it Possible to Disinherit a Spouse
Because of the elective share rules, it is difficult to actually effectively disinherit a spouse. However, there are tools that could potentially be used if you work with an experienced attorney to understand what is involved in disinheriting your husband or wife.
You could potentially disinherit your spouse if you have an agreement in place in advance, like a prenuptial agreement. There are strict rules for when prenuptial agreements – and the causes within them – are upheld. As a result, if you are hoping to use a prenup to ensure that you don’t have to leave substantial assets to your spouse, you should make sure to talk with an experienced attorney about how to create a prenup.
You could also talk with your attorney about whether it is possible to use other legal tools to make gifts and/or transfer at least some part of your estate assets outside of the probate process so your spouse won’t have as many assets to claim.
Getting Help from Burlington Elder Law Attorneys
Burlington elder law attorneys can assist you in understanding the rules for when you can and cannot disinherit a spouse. We also provide guidance to those whose husbands and wives have disinherited them and who wish to pursue a claim for a spousal elective share during the probate process. To find out more about how we can help with all aspects of the probate process and estate planning, give us a call at (802) 879-7133 or contact us online today.
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