Do I Have to Give Everything to My Spouse When I Die?

“Here’s what you need to know about your estate plan, if you’re married.”

There are probably more than a few people who want to ask this, but are uneasy with the question: when a husband or wife dies, are they required to leave some or all assets to the other spouse or can they give every asset to someone else?

nj.com’s recent article asks, “Do I have to leave any money to my spouse? Or can I give it all away?” The easy answer? There’s no requirement that spouses leave assets to each other, when they die.

However, it may not be that simple. That’s because in some states, the surviving spouse may be entitled to an “elective share” of the deceased spouse’s estate, even if the surviving spouse is disinherited under the deceased spouse’s will.

The surviving spouse usually can’t claim an elective share, if the spouses were living separate and apart in different residences, or had stopped living together as a married couple, or had a valid prenuptial or post-nuptial agreement that waived the elective share. In many states, the elective share is equal to one-third of the “augmented estate.”

The augmented estate is the deceased spouse’s estate, less funeral and estate administration expenses and enforceable claims. Certain transfers of property for less than fair market value made by the deceased spouse are added back to this amount. The surviving spouse’s assets are then deducted from the elective share.

If the surviving spouse’s assets, including any assets that were inherited by the surviving spouse from the deceased spouse, are more a one-third of the augmented estate—then the surviving spouse isn’t entitled to an elective share.

A complaint for an elective share must be filed within six months of the appointment of an executor in the county where the appointment was made. That’s a pretty short time.

Because of the relatively short time in which to file the elective share complaint, an experienced estate planning attorney should be engaged immediately after the deceased spouse’s death, to see if the surviving spouse is entitled to an elective share.

The burden is then on the omitted spouse to file an elective share action. For example, in New Jersey, if the complaint isn’t filed within six months from the time of probate, the surviving spouses loses the right to that share.

Reference: nj.com (April 25, 2018) “Do I have to leave any money to my spouse? Or can I give it all away?”