A question that comes up more frequently than one may expect in our practice is: can I disinherit my spouse. The simple answer to that question is No, you cannot just disinherit your spouse but you can sure try…
Although technically you cannot disinherit your spouse under Pennsylvania law, you can always try to leave them out of your estate plan. For example, you can omit them from your will, name others as beneficiaries of your life insurance, retirement and investment accounts and even create joint bank accounts with individuals that pass by operation of law to the other name on the bank account.
All of the aforementioned techniques are perfectly legal and can be utilized when creating your estate plan; nothing is stopping someone from doing any of these things. However, the question becomes; when one engages in this type of planning is it actually going to be successful in achieving the goal … actually disinheriting their spouse.
Even though you may try to disinherit your spouse through these kinds of techniques, if you are a Pennsylvania resident when you die your spouse may still have a legal claim. Thanks to what’s called the Pennsylvania elective share or “forced share”; found in the Pennsylvania Statutes under 20 Pa.C.S.A. §2203, “when a married person domiciled in this Commonwealth dies, his surviving spouse has a right to an elective share of one-third of certain property”.
The statute goes on to list the different types of property that would make up the elective share and if you want to investigate more be my guest. The main point here is to inform you that although you may take certain steps to disinherit your spouse, they will have the ability to make an election against your estate for their one-third.
So why attempt to disinherit your spouse? For many married couples the answer is simple you wouldn’t. Others may have another family or something else going on in their lives that is way too complicated nor appropriate to discuss in this blog article.
However, there are times when estate planning gets complicated and situations come about that call for one spouse to disinherit the other. The main reason we attempt to disinherit spouses or limit what they inherit is if the potential surviving spouse is in the nursing home.
In the field of elder law and estate planning it is common practice for the healthy (“community”) spouse to attempt to limit an institutionalized (nursing home resident) spouse’s inheritance if that spouse is receiving or could be receiving Medical Assistance in the future to help pay for their long-term care expenses.
In many instances complicated planning is done when an institutionalized spouse is placed in the nursing home in order to protect the couple’s assets for the community spouse. This complicated planning can all be undone if the community spouse dies before the institutionalized spouse and steps are not taken to limit the institutionalized spouse’s inheritance.
To try and limit what the institutionalized spouse can inherit and preserve Medical Assistance eligibility, estate planners may recommend an “elective share” will. These wills are designed to limit what the institutionalized spouse may inherit to the minimum to which they are entitled in Pennsylvania which is that previously mentioned elective share of one third.
To summarize, in Pennsylvania even if you are very mad at your spouse you cannot just disinherit them. There are laws on the books that protect spouses from being disinherited. However, in the estate planning and elder law community there is sometimes a need to disinherit your spouse or at least limit their inheritance so that they may stay on Medical Assistance and get the care they need.
When these occasions come up you should not try and tackle the issues yourself but contact a local elder law attorney. If you live in Pennsylvania and are facing any of the issues discussed in this article, the elder law and estate planning lawyers at Marshall, Parker & Weber would be more than happy to meet with you to discuss your case and help with planning.
