Am I Required to Leave Any of My Estate to My Spouse?

Specific rules regarding estate planning for your spouse can vary by state.

You are married.

You plan to still be married when you die.

Will your spouse automatically receive everything?

Are you required to leave anything to your spouse?

Can you leave your assets to your children instead?

According to a recent nj.com article titled “Do I have to leave any money to my spouse? Or can I give it all away?,” you are not required to leave your entire estate to your spouse.

In most states, however, you may be required to leave your surviving spouse at least part of your estate absent an enforceable written agreement otherwise.

Why?

In certain states the surviving spouse is entitled to an "elective share" of the estate of the her spouse.

Generally speaking, in Missouri this amounts to roughly one-half (if the deceased spouse had no lineal descendants) to one-third (if the deceased spouse had lineal descendants) of the estate of the deceased spouse.

Since 1995, the Kansas Probate Code has a decidedly different calculus. The Sunflower State applies a "sliding scale" based on the length of the marriage to determine the estate percentage against which the surviving spouse may elect.

For example, the moment a Kansas couple says "I do," each spouse is vested only at 3 percent of the augmented estate and, only after 15 years of marriage does that vesting reach 50 percent of the augmented estate. The percentage increases each year up to year 14.

So, what is this "augmented estate"?

According to KSA § 59-6a203:

"Subject to K.S.A. 59-6a208, the value of the augmented estate, to the extent provided in K.S.A. 59-6a204 through 59-6a207, consists of the sum of the values of all property that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's property and nonprobate transfers to others."

Interestingly, when computing the augmented estate, all assets of both spouses are added back into the pool.

The basic policy notion here is to protect the "needy" spouse who has been in a long-term marriage with the decedent from being disinherited in favor of a his mistress. At the same time, it protects the estate from a "greedy" spouse stepping in to disinherit the children of a previous marriage if their new "mother" (who is roughly their age) marries their father on his death bed.

If a widow or widower believes she or he may have been unjustly disinherited, then time is of the essence regarding the time frame to challenge the estate.

 

It is up to the excluded spouse to file the claim.

An experienced estate planning attorney should be engaged to assist as soon as possible.

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: nj.com (April 25, 2018) “Do I have to leave any money to my spouse? Or can I give it all away?”