Can I Disinherit My Spouse in Indiana?
One of the primary motivations for creating an estate plan is the knowledge that you will be able to decide who inherits from your estate. For most married couples, estate planning entails figuring out how to ensure that the surviving spouse does receive the assets of a deceased spouse. But what if you do not want your spouse to inherit from your estate? The Indianapolis attorneys at Frank & Kraft discuss whether you can disinherit your spouse in Indiana.
Estate Planning Benefits: Control Over Your Estate Assets
Like many people, the impetus to finally create an estate plan may have been the ability to control what happens to your estate assets after you are gone. Absent an estate plan, the Indiana intestate succession laws will dictate who inherits from your estate and in what proportions. Under Indiana’s intestate succession rules, for example, your spouse could inherit somewhere between a little over 25 percent to 100 percent of your estate if you die without a plan in place, depending on which other heirs survive you. If, for whatever reason, you do not want your spouse to inherit anything from your estate, you might think that simply leaving your spouse out of your Will or specifically stating that he/she is to take nothing from your estate would accomplish this goal. You would, however, be wrong.
Why Can’t I Disinherit My Spouse in Indiana?
As a general rule, you have the right to distribute your estate assets in any manner you choose. You can also typically disinherit anyone, including your legal heirs, by making it clear in your Will that you intended to disinherit them. The one exception to this general rule is your spouse.
Indiana is one of several states that has a spousal and family allowance law that effectively prevents you from completely disinheriting a spouse. The law entitles a surviving spouse to an allowance of $25,000 that may be claimed against:
(1) the personal property of the decedent’s estate;
(2) the real property that is part of the decedent’s estate; or
(3) a combination of personal property under subdivision (1) and real property under subdivision (2).
If your spouse does not survive you, your children under the age of 18 are entitled to the $25,000 allowance, split equally among them.
Can a Prenuptial or Post-Nuptial Agreement Disinherit My Spouse?
A common reason to want to disinherit a spouse is because it is a second marriage, and you want your assets to go to your children from a pervious marriage. Unfortunately, however, the only way to accomplish this is to get your spouse to sign a prenuptial or post-nuptial agreement wherein he/she agrees to waive the spousal allowance. While a prenuptial or post-nuptial agreement can be an effective way to completely disinherit a spouse in Indiana, be sure to work with an experienced attorney when executing the agreement to decrease the likelihood of a successful challenge to the validity of the agreement.
Do You Need to Discuss Disinheriting Your Spouse in Indiana?
For more information, please join us for an upcoming FREE seminar. If you want to disinherit your spouse for any reason in Indiana it is in your best interest to contact the experienced Indianapolis estate planning attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Paul Kraft is Co-Founder and the senior Principal of Frank & Kraft, one of the leading law firms in Indiana in the area of estate planning as well as business and tax planning.
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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