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Can you disinherit your spouse as revenge for an unsuccessful marriage?

On Behalf of | Jan 13, 2022 | Estate Administration & Probate |

If your spouse has been abusive toward you or cheated on you, you may have felt trapped in a miserable marriage. Some people, for medical, religious or personal reasons, cannot file for divorce even when they have a truly toxic relationship with their spouse.

If you are unhappily married and don’t intend to get divorced, can you disinherit your spouse as a way to punish them?

Spouses typically have the right to an inheritance

Your children and other descendants have no formal entitlement to your property when you die. If you create your own estate plan, you can do what you want with your assets. Only in scenarios where someone dies without testamentary documents do their children have a statutory right to inherit from their estate. Parents can decide to write out any of their children or all of them when drafting a will.

A spouse is a different matter. Spouses have a legally protected right to inherit property when the other spouse dies. Even if you change your estate plan to leave your spouse just $10 or your old armchair instead of anything valuable, they can claim their elective share of your estate under Massachusetts law.

Is there any way around these rules?

There are a few ways that people can create an estate plan that deviates from the common expectations in Massachusetts. Creating a trust is a common strategy. Assets held in a trust don’t go through probate and won’t be subject to the elective share rules like the property held in your name when you die. Of course, you can’t transfer joint or marital assets into a trust without the permission of your spouse and any other co-owners.

Exploring the law, your assets and your current estate plan can help you implement measures to create a legacy that upholds your wishes.

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