Can I Exclude My Spouse From My Will in Alabama?

Sep 6

Estate planning in Huntsville, Alabama, can be a bit tricky to navigate—especially if you need to exclude a spouse or other beneficiary from your will.

Regardless of your reasons for excluding a spouse or other individual from your will, the first step is understanding how these exclusions work and what your legal limitations are.

For example, even if you can write your spouse out of your will, that doesn't solve your problem. Under Alabama law, your spouse can still claim an elective share: the smaller of one-third of your estate or your estate minus the value of your spouse's own assets, plus certain allowances. That right applies even though your spouse was left out of your will.

In this article, we're going to go into detail about the parameters of a last will and testament in terms of what you can and can't do when it comes to excluding your spouse.

The Parameters of a Will in Alabama

When it comes to writing your last will and testament, you get to pick and choose to whom and where the assets of your estate will be left to.

Your will denotes your last wishes for your property, investments, money, pets, and even your funeral. Essentially, what you say goes. Accordingly, you don't have to name your spouse in your will if you don't want to. However, excluding them becomes a matter of disinheriting the person.

There are several reasons why people choose to disinherit a spouse from their will, including:

Changing a Will after Divorce or Remarriage

Should your marriage end in a divorce and you enter into a new marriage, you'll probably want to name your new spouse in your will. Luckily, wills and revocable trusts can be amended. First, however, you'll want to ensure that you update the terms of your estate so that your named beneficiaries receive certain assets.

Your current spouse is entitled to spousal inheritance rights under Alabama law, which means they can end up being granted a large share of your estate. However, suppose you wish to give your children equal shares as beneficiaries. In that case, it may mean that your spouse will receive less than they expect or assume —this is something that should be determined in your will so that expectations are managed.

It's also something that can be achieved via prenup or a postnuptial agreement.

Changing a Will for Estrangement

While estrangement usually applies to the children that would gain an inheritance from your estate, it can apply to marriage as well, whether by will or intestate succession laws.

If you're still married but estranged from your spouse, disinheriting them from your will is the next logical step. However, if you're estranged from a spouse already named in your will, the disinheritance process can become complicated.

Amending a Will based on Individual Needs or Personal Irresponsibility

You may come to find that your loved ones have different pending financial needs that may be interrupted by a lack of financial responsibility.

For example, you have one child who wishes to attend a university while another child has started their own business. Both are high achievers, and you do not doubt that with the proper support, they'll be successful.

On the other hand, your spouse is financially irresponsible and cannot be trusted to maintain the necessary support of your children's endeavors.

In that case, you may want to structure your will and estate so that your children can receive more financial support and the money that would be left to your spouse won't go to waste.

Of course, when it comes to individual needs or the responsibility of managing an inheritance, other options are available. For example, it may be more beneficial to set up a trust to specify each inheritance amount and its use.

Whatever your reasons for wanting to disinherit your spouse from your written will in Alabama, you'll need to go through the correct legal processes. This helps your estate end up in the right hands.

What About My Other Assets?

It's essential to keep in mind that certain valuable assets don't apply to your will and, therefore, may not pass through it. These same assets also don't apply to the Alabama intestate succession laws.

The assets we're talking about here may include

Any property that you've transferred to a living trust
Your life insurance proceeds (if you have a policy)
Your retirement accounts, in some cases, including an IRA, 401(k), etc.
Any securities being held in a transfer-on-death account
Any payable-on-death accounts
Property that you co-own with someone else with a right of survivorship written into the title

The above assets may be distributed to either the surviving co-owner or their named beneficiary—regardless of whether or not you have a will.

Suppose your spouse is named as a co-owner or beneficiary of any of the above. In that case, they will likely receive a portion or manage any assets involved in these accounts.

If you choose to exclude your spouse from receiving any of the above benefits, you may have to name new beneficiaries for each account. Federal law generally requires your spouse's written consent to name someone else as beneficiary of an employer retirement plan, such as a 401(k).

The Alabama Intestate Succession Laws entitle your survivors to certain benefits. This law gives your heirs set shares based on whether you leave descendants, whether all of them are also your spouse's descendants, and whether your parents survive you.

Suppose you pass away without a will, and all of your descendants are also your spouse's descendants (including children you adopted together). In that case, your spouse will receive the first $50,000 of your intestate estate and half of the rest, and your descendants share the remainder.

If you leave no descendants but a parent survives you, during probate your spouse will receive the first $100,000 of your intestate estate and half of the remaining balance, and your parents receive the rest. If no parent survives, your spouse inherits everything.

If you wish to keep your spouse from inheriting anything from your estate, the usual route is a prenuptial or postnuptial agreement in which your spouse waives inheritance rights.

So, Can I Disinherit My Spouse from My Will?

The answer to this question is both yes and no.

You can leave your spouse out of your will, but your spouse can claim an elective share unless they waived it in a signed agreement.

Alabama isn't a community property state. That means your spouse's rights at your death come from Alabama's Probate Code, such as the elective share, not from a community property split.

In other words, there are specific limits set in place to protect spouses. A prenuptial or postnuptial agreement is how spouses can waive those protections by contract.

How Can I Disinherit My Spouse in Alabama?

Whether or not your spouse agrees, Sarah S. Shepard can walk you through what your spouse could still claim and how to plan around it.

Keep in mind that your spouse's agreement matters. Without a signed waiver, such as a postnuptial agreement, your spouse keeps the right to claim an elective share, and a trust created in your will does not defeat that share.

Ty Shepard