You may not be able to imagine a situation where someone would want to disinherit their spouse. However, San Antonio probate lawyers see it all the time. There could be all sorts of reasons for this. Maybe they were contemplating divorce but didn’t get to do it before they got sick. Or perhaps they think their spouse was cheating on them when they died. The law doesn’t really care why you want to disinherit your spouse. They just dictate whether you can do it at all.
Basically, while you can disinherit your child, you really can’t disinherit your spouse. The law is designed this way. Part of the reason for this is the State doesn’t want to be responsible for taking care of your spouse. If you disinherit your spouse, they may have no way to support themselves. The last thing the State wants to do is be responsible for their housing, food and healthcare.
Another reason why the law doesn’t allow you to disinherit your spouse has to do with fundamental fairness. Texas is a community property state. This means that, with a few exceptions, you and your spouse own your property together. The law isn’t going to let one spouse give away property that belongs to the other.
Before you decide whether or not you can (or will) disinherit any of your family members, you should consult with your San Antonio probate lawyer. Sometimes, people make rash decisions when it comes to their will. They may get into an argument with their spouse or child and threaten to change their will. The next thing they know, they’re calling their probate lawyer to change their will.
Why Would You Want to Disinherit Your Spouse?
It seems a bit extreme to disinherit your spouse. It’s hard to imagine them doing anything so terrible that it would make you want to leave them nothing when you die. But it’s not your probate lawyer’s job to judge. They simply ask you what you want to do and see if there’s a way to make it happen.
This doesn’t mean your San Antonio probate attorney won’t ask you what your motivations are. But this isn’t because they think your motivations are bad. It’s just that they want to make sure that you’re absolutely certain you want to go through with it. Depending on the timing of when you draft your will, it may be a decision that you can’t take back.
Some of the common reasons why someone would want to disinherit their spouse include:
- They were in the middle of divorce proceedings
- They believe their spouse has been unfaithful
- They think their spouse has plenty of money and want to take care of their children instead
- They have an arrangement with a prior spouse or third party
- There is a prenuptial or postnuptial agreement that states your spouse is to get nothing in the will
Regardless of the reason, it’s important to know that Texas makes it almost impossible for you to disinherit your spouse.
What Does the Law Say About Disinheriting Your Spouse?
Texas law does not allow you to disinherit your spouse. Because it’s a community property state, your spouse is automatically entitled to one half of your estate. And, if there are no children, they’re entitled to your entire estate.
Now, this is limited to community property. If there is separate property, then you can dispose of it as you please. For example, if you brought a house into the marriage, then you can leave it to whoever you want. You can order that it be sold and the proceeds be used to open a shelter for abused animals. It is entirely up to you.
Your spouse can also opt to surrender their elective share in order to get a better share of your property through the will. For example, if your will states to sell everything and give your spouse half of the proceeds, your spouse can elect to abide by this request. It really comes down to which way works out better for them.
Contact an Experienced Probate Lawyer in San Antonio
The bottom line is that if you want to make sure your will accomplishes your goals, you should call an experienced probate lawyer in San Antonio. While your attorney can’t change the law, they can do their best to work around it. They can push to accomplish your wishes within the confines of the law.
Call Eddington & Worley today and schedule your initial consultation. You can sit with a skilled attorney who can answer any estate or probate questions you may have.