PROBATE MYTH NO. 4 I DON’T HAVE TO LEAVE ANYTHING TO MY SPOUSE
Some couples decide not to leave each other a significant amount of assets. Especially if each one owns some assets independently, they may agree that each will leave most assets to his or her children from a previous marriage, or to a charity. Many couples in second marriages, especially if they married later in life, are primarily concerned with providing for children from a previous relationship.
This can work just fine, as long as when the first spouse dies, the survivor is still happy with that arrangement. But if circumstances have changed, or the survivor simply changes his or her mind, trouble can arise. That’s because state law gives surviving spouses the right to refuse to take the assets left in the deceased spouse’s will, and instead choose to take what most states call the “elective share” of the estate. This is often called “taking against the will.”
State law may give the survivor one-third of the estate, or a year’s support, or the right to live in the family home- it varies widely from state to state. In some states, the longer the couples were married, the bigger the share the survivor can claim.
Tip: If you and your spouse don’t want to leave property to each other in your wills, go to a lawyer and discuss your plans. You’ll want to sign waivers, giving up your right to take against the will.
Ref: Mary Randolph, J.D., Nolo
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