Whether your spouse inherits your entire estate depends on your state's laws. If you die without a will, your estate is divided according to state intestacy laws. If you had a will, your spouse's share is partly dependent on what you left her and whether you have surviving children or parents. Any part of your estate not subject to your state's estate laws, such as your retirement account, automatically belongs to the person you put as beneficiary on the account paperwork. Property you owned jointly with your spouse, such as your home, usually belongs to her as soon as you die.
Spouse in Will
If you left a will that named your spouse as the only beneficiary of your estate, she may inherit everything. Some states provide automatic shares of your estate for your children if you don't in your will or if the will was made before the children were born. For example, in Oregon, children born after a will's creation receive a share equal to what they would have received if there wasn't a will. If you specifically disinherited a child in your will, the child may contest the will after you die and receive a share if successful.
Spouse Omitted or Disinherited
If you intentionally disinherit your spouse in your will, state laws may give her a share of your estate anyway. How much she receives depends on your state, but she usually isn't entitled to the entire estate. For example, a disinherited spouse in Colorado may get up to half her surviving spouse's estate, but a spouse in Delaware only receives one-third of the estate. Your spouse is considered an omitted spouse if the two of you married after you made your will and, therefore, your spouse is not mentioned in it. An omitted spouse may receive a share of your estate under your state's laws, but if you provided for her in another way, such as by creating a trust for her, she may not be entitled to any part of your estate. If your spouse has separate property worth more than she'd receive under state laws for an omitted spouse share, she may not receive any part of your estate. Separate property is property not subject to your state's marital property division laws, such as a home she inherited. Community property states, such as Arizona and California, don't give an omitted or disinherited spouse an automatic share because she's entitled to her half of the community property.
Read More: What Must a Surviving Spouse Inherit?
Intestacy laws differ by state. Your spouse may get everything if you don't have children or living parents. If you have children or living parents, your spouse is usually entitled to a majority share, with the rest going to your children or parents. If your spouse's share is the same as or exceeds the value of your estate, she may receive the entire estate even if you had surviving children or parents.
State laws differ at what happens to your estate if you die while legally separated, but not divorced, from your spouse. Some states give your spouse the right to inherit as a surviving spouse under your will or through intestacy laws. Other states don't consider her your surviving spouse if there was a legal separation agreement in effect at the time of your death.
- The Law Office of John S. Palmer: Omitted Children, Spouse, or Domestic Partner
- Living Trust Network: Can I Disinherit My Child?
- Findlaw: Intestacy Laws
- Law Office of Steven C. Gruber: Dying Without a Will or Trust
- LawCheck: Can a Spouse Elect Against a Will?
- The Probate.net: Can a Husband or Wife Inherit After a Divorce?
- Hardig, Parsons, Pedersen & Stout, PLLC: Inheritance as it Pertains to Legally Separated Surviving Spouses
- Atkinson, andelson, Loya, Ruud & Romo: Traps for the Unwary
Anna Assad began writing professionally in 1999 and has published several legal articles for various websites. She has an extensive real estate and criminal legal background. She also tutored in English for nearly eight years, attended Buffalo State College for paralegal studies and accounting, and minored in English literature, receiving a Bachelor of Arts.