You may be upset with your spouse and have decided in your heart to get the last laugh by selling the family home and leaving everything to charity at your death or giving it all away before you die. But before you run off to your attorney’s office to reduce your plan to writing or log onto LegalZoom to do it yourself, there are two things you should keep in mind:
- You can’t disinherit your spouse by giving everything away prior to death; and
- You can’t disinherit your spouse at your death through your estate plan.
Sorry! Your legal obligation to your spouse does not end at death if you are the first to go. The law does not allow you to disinherit your spouse. Assuming your spouse is not asleep at the wheel, if you try to disinherit your wife or husband, it will likely lead to litigation between your spouse and your estate. This can be costly and totally avoidable if planned for in advance.
I won’t bore you here with the formula …. and legal terminologies; I’ll save that for our next meeting. But in layman’s terms, for Maryland couples there is a new formula to determine a spouse’s elective share. Also, the pool of assets are widening to include assets beyond those ordinarily subject to the probate process. These changes are effective October 2020.
So what does that mean for you? For couples in general and especially Maryland residents, it would be wise to review your estate plans annually to ensure that you have considered current changes in the law and implement strategies to minimize risks of future litigation against your estate. This may include obtaining spousal consent where possible and/or selecting assets and financial vehicles to prefund your spouse’s share should your spouse survive you. And, of course there is always one other option…stay healthy and be the last man or woman standing!