Can My Spouse Cut Me Out of His Will?
When it comes to estate planning, few questions spark more concern than whether a spouse can be legally left out of a will. It’s a topic that touches on emotional and legal complexities, especially in states like Tennessee where specific laws govern spousal inheritance rights. Understanding these laws is key, whether you’re worried about your situation or trying to protect a loved one.
At Foust & Foust, PLLC, we’ve helped families through estate planning challenges like these, ensuring our clients have peace of mind. Let’s take a closer look at what happens when a spouse isn’t included in a will and what options you might have.
Spousal Rights in Tennessee
The idea that a spouse can be entirely disinherited by a will is not as straightforward as it seems. The state law provides certain protections to spouses, even if they’re intentionally omitted from a will. These protections are designed to prevent financial hardship and ensure fairness in inheritance matters.
The Elective Share: A Safety Net for Spouses
Tennessee law grants surviving spouses an “elective share” of their deceased spouse’s estate. Essentially, this means that if you’re left out of your spouse’s will, you can claim a portion of the estate regardless of the will’s terms. The size of the elective share depends on the length of the marriage, ranging from 10% for marriages under three years to as much as 40% for marriages over 9 years.
Key Points About Elective Share:
- It’s not automatic: You must file a claim within nine months of your spouse’s death.
- It applies to probate and non-probate assets: The court considers the entire estate, including assets like bank accounts and real estate.
- It’s your choice: You can accept the elective share or whatever is left to you in the will—whichever is greater.
What If the Will is Contested?
Sometimes, being left out of a will isn’t just a matter of intention. Wills can be contested for several reasons, including fraud, undue influence, or lack of capacity. For example:
- Fraud: If someone tricked or deceived your spouse into signing a will that excludes you, the will could be invalidated.
- Undue Influence: If another person pressured or manipulated your spouse into cutting you out, this could also be grounds for a contest. However, you must be able to prove that spouse was influenced.
- Mental Incapacity: If your spouse didn’t fully understand what they were doing when creating the will, it may not hold up in court.
At Foust & Foust, we guide our clients through will contests when necessary, helping protect their rights while honoring the deceased’s intentions.
What About Prenuptial or Postnuptial Agreements?
If you and your spouse signed a prenuptial or postnuptial agreement, it might include terms waiving your right to the elective share. These agreements are legally binding if they meet Tennessee’s standards for fairness and full disclosure. If you’re concerned about an agreement you signed, it’s a good idea to have it reviewed by an experienced attorney.
Real-Life Example: When a Spouse Challenges a Will
Imagine this scenario: Sarah and John were married for 20 years, but John’s will leaves everything to his children from a previous marriage. Sarah is understandably upset and feels this isn’t fair, given their long marriage and the assets they built together. Sarah decides to claim her elective share.
Here’s what happens:
- Sarah files her claim within the required timeline.
- The court calculates the elective share based on the total estate value.
- Sarah ultimately receives 40% of the estate—her rightful share under Tennessee law.
Common Questions About Spousal Rights and Wills
Can my spouse completely disinherit me?
Not entirely. Tennessee law ensures a surviving spouse can claim an elective share of the estate, even if the will excludes them.
Does the elective share include everything?
Yes, it includes both probate and non-probate assets, such as retirement accounts or jointly owned property.
What if my spouse and I were separated?
Separation doesn’t necessarily disqualify you from claiming an elective share unless you’re legally divorced.
What happens if I don’t claim the elective share in time?
You may lose your right to the share, so it’s crucial to act within the nine-month window.
Why Choose Foust & Foust, PLLC?
At Foust & Foust, we understand how stressful these situations can be. Whether you’re trying to protect your inheritance or ensure a fair division of assets, we’re here to help. Our approach combines deep knowledge of Tennessee estate laws with compassionate, client-focused service. When you work with us, you can expect:
- Clear communication: We’ll keep you informed every step of the way.
- Personalized advice: Your family’s circumstances are unique, and we’ll tailor our guidance to meet your needs.
Peace of mind: You’ll know your rights are protected, and your loved one’s wishes are respected.
