By Bryony Harris, Elder & Disability Law Clinic Student, Spring 2018

Death is a natural part of life, and no matter what, you will eventually face it. When someone passes away, it is often a difficult and emotionally draining time. It is better to be prepared for this, not only for yourself, but also for your family’s sake. Being prepared for your own death will help them in this difficult period. A common way to make this process easier is to create a will. The will describes how you wish your estate to be managed and divided after you pass away. Many people decide to leave their estate to their family members, and often leave their entire estate to the surviving spouse; however, you may not want your spouse to inherit all or even part of the estate.

Even if the marital bliss has worn off, by law, you cannot necessarily cut your spouse out of the estate. Your spouse has certain rights at your death, regardless of whether you leave them anything in the will. Unless you have a written marital agreement, your spouse may claim an assortment of these rights: the elective share, the family allowance, the exempt property allowance, or the homestead allowance.

  • The elective share equates to 1/3 of your estate; your spouse is entitled to this portion. This share must be claimed within six months of probate of the will, but if claimed, it is paid before any other bequests. It is first paid from items that are owned jointly, and then from anything left to your spouse in the will. If this does not amount to at least 1/3 of the total estate, the balance will come from the residue of your estate, even if you have designated that portion to other beneficiaries.
  • The family allowance must be claimed within a year of your death. With this allowance, your spouse could collect up to $24,000 from the estate for support and maintenance during the period of estate administration.
  • The exempt property allowance allows your spouse to claim up to $20,000 in tangible personal property from the estate. This must be claimed within one year of your death. This allowance could include any personal items, such as cars, furniture, jewelry, or other individual items.
  •  The homestead allowance allows your spouse to collect an additional $20,000 from the estate. Your spouse must claim this within one year of your death.

First option: your spouse could decide to claim the elective share*, the family allowance, and the exempt property allowance either separately or together.

Second option: your spouse could decide to claim the homestead allowance*, the family allowance, and the exempt property allowance either separately or together.

 * Note your spouse cannot claim both the homestead allowance and the elective share.

Depending on the size of the estate, some allowances may be more lucrative or realistic than others. After your death, your spouse is not required to claim any of the allowances, but if your spouse does choose to claim any of them, they are automatic payouts. So, even if you choose not to leave your spouse anything in your estate, your spouse can claim these allowances and get a portion of the estate regardless of what the will says. Since these allowances are often unknown or misunderstood, they are something to be aware of and you should determine how you want to deal with your spouse’s rights ahead of time. In summary, although a will can make the process after death easier, there are limitations on what you can do with it and some inherent spousal rights cannot be avoided without a marital agreement.