Page 4 - Jupiter West - January '24

Page 4, Jupiter West
Limited Impact Of Estrangement On Estate Planning

Submitted by Anné spouse to elect to inherit a certain percentage – often In states in which the surviving spouse’s elective share is
Desormier-Cartwright, Esq. ranging from 30 to 50 percent – of their deceased spouse’s limited to the probate estate, beneficiaries other than the
Unfortunately, rifts estate regardless of what the deceased spouse’s will says. estranged spouse can be named to receive assets such as
sometimes arise between In some states, the surviving spouse is only allowed to retirement accounts, money and property held in trusts,
family members that are take their elective share from the probate estate, which and life insurance policies. Other strategies, such as
much more serious than excludes money and property that have been transferred lifetime gifts and prenuptial or other marital agreements
just temporary squabbles. to a trust, insurance policies, and retirement or financial may also be used to limit or waive the spouse’s right to
The re sul t ma y be accounts that name other beneficiaries. Other states inherit an elective share.
estrangement, defined as have laws that include both the probate estate and other When someone wants to disinherit a child, their will
“the state of being alienated accounts or property the deceased spouse owned; these should clearly state that intention. To avoid a will contest
or separated in feeling or laws provide that the surviving spouse’s elective share by a disappointed child, the parent could also consider
affection; a state of hostility can be calculated based on a larger pool of assets called including a small inheritance for the estranged child and,
or unfriendliness” or “the state of being separated the augmented estate. if no-contest clauses are enforceable under their state law,
or removed.” Estrangement does not mean that the As a result of the intestacy and elective share laws, an a no-contest clause providing that the child will lose the
1
relationship has come to an end legally, however. estranged spouse is likely to be protected from complete inheritance if they unsuccessfully contest the will. If the
A husband may move out of the home he shared with disinheritance in the absence of other planning. parent transfers their money and property to a trust, the
his wife and have limited or no contact with her or their Estranged Child child can simply not be named as a beneficiary of the trust.
children. A child who has been abused may live with a As with an estranged spouse, if no estate plan is in Take Steps To Memorialize The State Of The
relative and avoid contact with their parent. A parent may place, a child will be able to inherit from their parent Relationship
choose not to associate with a child who has committed under the state intestacy statute, even if they have had For estranged spouses, doing what is required to legally
crimes or abused their trust. These types of situations are no contact with their parent for many years. end the relationship is another way to avoid unintended
unfortunate and occur more often than we would like. You The estranged child may also inherit under some results when one of the spouses dies. After divorce, the
may be surprised to learn that limited contact, or even the circumstances if their deceased parent created a will that surviving former spouse is not entitled to inherit any
absence of any contact, will not have a major impact on does not provide for them. Similar to the laws designed amount from the deceased former spouse unless there
the legal right of an estranged spouse or child to inherit to protect surviving spouses who were unintentionally is a property settlement agreement providing otherwise.
from their family member, especially if there is no estate omitted from a will, many states have laws providing Depending on state law, even if the surviving former
plan expressing an intention to disinherit them. that if a child is unintentionally omitted from a will – for spouse is still a beneficiary in the deceased former
Estranged Spouse example, if the child was born after the will was created spouse’s will, they may not be entitled to inherit pursuant
Intestate succession statutes. If the deceased spouse and the will was not updated to include them – the child to the will unless there is additional documentation
did not have an estate plan in place, the surviving spouse should inherit the amount they would have received showing that the deceased former spouse intended that
is legally entitled to inherit from the deceased spouse as under the intestacy statute if the parent had died without result. As mentioned above, the effect of legal separation
set forth in their state’s intestate succession law even a will. This protection will not apply if the parent’s will varies depending on state law: In some states, legal
if the spouses are estranged – and in many states, even expressly disinherits the child. However, under this type separation has no impact on a spouse’s right to inherit
if they are legally separated. Intestate succession laws of statute, if the will does not expressly state an intention under the intestacy or elective share statute.
provide a default estate plan representing the state’s view to disinherit the estranged child, they may be able to We Can Help
of the fairest distribution of a deceased person’s money inherit in specified circumstances even if their parent’s One of the important goals of estate planning is to
and property. In many states, if the estranged couple did will does not provide for them. ensure that your wishes are carried out. If you want to
not have any children, the surviving spouse will likely Ways To Address Estrangement In Your Estate Plan prevent an estranged family member from inheriting
inherit the entire estate of the deceased spouse – even if Those who do not want an estranged family member to from you, your estate plan needs to expressly state
they despised each other and had not seen each other for inherit from them should create an estate plan that includes that intention. We can help you think through how to
many years. If there were children from the union, the a will expressly stating that intention or a trust that does best accomplish your estate planning goals while also
surviving spouse and children may each receive a portion not include the estranged spouse or child as a beneficiary. minimizing any further strife in your family. Give us a
of the estate as set forth in the intestate succession statute; As mentioned, a spouse can inherit the amount allowed call today to set up an appointment. You can reach us at
in community property states, even if the couple had under the elective share statute regardless of the terms (561) 694-7827. Elder & Estate Planning Attorneys PA,
children, the spouse may inherit all community property, of the deceased spouse’s will. To avoid litigation by the 480 Maplewood Drive, Suite 3, Jupiter, FL 33458.
although any separate property may be divided between estranged spouse, the will could provide for an inheritance
the surviving spouse and the children. in the amount the surviving spouse would be entitled to 1 Estrangement, Dictionary.com, https://www.dictionary.
Pretermitted spouse statutes. Some states have another receive as their elective share or the “statutory minimum.” com/browse/estrangement (last visited Aug. 29, 2023).
type of statute that is intended to protect a spouse who
is unintentionally omitted from a will, for example, if
the will was created prior to the marriage and was never
amended to provide for the spouse. These laws typically
provide that unless the will expresses an intention to
disinherit the surviving spouse, the spouse will inherit
the amount they would have received under the intestacy
statute if the spouse had died without a will. Therefore,
depending on the circumstances, even if an estranged
spouse’s deceased spouse had a will that did not provide
for them, the estranged spouse may be entitled to inherit
some or all of the deceased spouse’s property if there is
no express statement in the will of the deceased spouse’s
intention to disinherit them.
Elective share statutes. Even if the deceased spouse 747-PALM
created a will that expressly indicates an intention to
completely or partially disinherit their spouse, the state’s 747-7256
elective share statute typically protects the surviving
spouse to some degree. This type of statute allows a

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