Many people come to the estate planning process with certain expectations, and even misconceptions, about the process and the laws involved with it. Many people, for example, are surprised to find out that you can choose to effectively disinherit your children or grandchildren, even though you cannot do the same for a spouse.
All states have inheritance laws that protect spouses to some degree by ensuring that they stand to inherit at least a part of a deceased spouse’s property. These laws, known as elective shares or spousal shares, operate differently depending on the state, but they have several common factors of which you should be aware.
State elective share laws entitle spouses to receive either a specific amount from an estate, or a portion of the estate depending on the circumstances. For example, your spouse could choose to take the first $100,000 of your estate plus the remaining half. The other half of the estate would be divided in accordance to the terms of the Will.
Elective shares are never required of anyone. So, if your spouse should die without leaving you an inheritance you are under no obligation to choose to take the elective share. Also, some couples choose to waive their right to inherit an elective share ahead of time through a prenuptial or premarital agreement. This is commonly done in blended family situations where each spouse wants to preserve his or her own share of the marital property to ensure the children have enough of an inheritance.