Question: My wife and I have been married for seven years and have no children. Each of us has children by a prior marriage. Because we are having a lot of problems, I went to a lawyer to discuss how I could change my will to make sure she received very little from my estate if I died before her. He told me that no matter what my will provided, my wife would get one-third of my estate. We do not have a premarital agreement. Is there anything I can do?
Answer: Short answer: It depends on the law of the state in which you live, what you own, and how the property is titled. Generally, state laws provide that a spouse has certain rights in a deceased spouse's probate estate, and the majority of states allow a spouse to elect whether to take under the will or to take against the will in order to get what is often referred to as a "forced share" or "elective share". Unless this election is waived or released in writing, one spouse can not deprive the other of these rights. However, depending on the law of your state of residence, it may be possible to defeat a surviving spouse's elective right to an elective share by removing assets from your estate through absolute life-time transfers and the use of trusts, annuities, life insurance, and other vehicles. However, by doing this, you will lose control of your assets.
Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is seen in newspapers throughout the United States and can be found on the Internet at http://www.flyingsolo.com.
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