When it comes to estate planning, many people assume they can leave their assets to whomever they choose. And while that’s often true for distant relatives or even your own children—your spouse is a different story.

In most U.S. states, you can’t simply disinherit your spouse with the stroke of a pen—at least, not without their consent.

Here’s what you need to know before making assumptions about what happens to your estate when you pass.

Spousal Rights Are Protected by Law

Unlike other family members, your spouse has a legally protected interest in your estate. If you try to leave them out of your will or trust, they may still be entitled to a significant portion of your assets—regardless of your intentions.

The only way around this? A legally binding agreement signed by both parties—typically a prenuptial or postnuptial agreement—in which the spouse voluntarily waives their rights to inherit. Without that, your estate plan may not hold up in court.

The Rules Vary by State—and They’re Far from Simple

Every state has its own framework for determining what a surviving spouse is entitled to receive. Some states follow elective share rules, allowing a spouse to claim a percentage of the deceased’s estate. Others operate under community property laws, which automatically entitle the spouse to a share of property acquired during the marriage.

In some cases, a surviving spouse’s rights may depend on:

  • The length of the marriage

  • Whether the couple had children together

  • What the deceased spouse owned individually

  • What assets passed outside of probate (e.g., via beneficiary designations or joint accounts)

  • The total value of the “augmented estate,” which may include life insurance, retirement accounts, and revocable trusts

Here’s an example:
In Florida, a surviving spouse can claim 30% of the “elective estate”, which includes not only probate assets but also certain nonprobate accounts like jointly held property, life insurance, and retirement funds. That amount is reduced by any debts owed by the deceased.

The catch? The clock is ticking. Some states give you just a few months to assert your claim—others, a few years. Either way, waiting too long could forfeit your rights altogether.

If You’re the Surviving Spouse, Time Is Critical

If your spouse has passed away and you’ve just discovered you weren’t included in their estate plan, don’t wait. The sooner you speak with a qualified attorney, the better your chances of protecting your interests.

Whether your spouse intentionally excluded you—or simply failed to update their documents—state law may still entitle you to a portion of the estate. But you’ll need legal support to claim it.

The Takeaway

Disinheriting a spouse isn’t as simple as it may seem. While you can control much of your estate planning, the law draws a hard line when it comes to spousal rights.

Whether you’re in a blended family, considering a prenup, or simply want to ensure your estate plan is airtight, our team is here to help. We’ll walk you through your options, make sure your documents are aligned with your intentions—and ensure that everyone involved is protected.

Let’s talk about your plan—before surprises become problems.
Schedule a consultation to safeguard your legacy and avoid unintended consequences.