What's New | Articles & Press Releases


Disinheriting a Spouse

In Connecticut, a surviving spouse cannot be disinherited. If the deceased spouse's estate does not provide for the surviving spouse, the surviving spouse may elect to take a statutory share of the real and personal property passing under the will of the deceased spouse. The statutory share is a life estate of one-third in the value of all the property passing under the will, both real property and personal property. If the deceased spouse died without a will, the surviving spouse may take under the laws of intestacy. A surviving spouse's intestate share will be the entire intestate estate if the deceased spouse died without surviving descendants or parents. If the deceased spouse died with surviving descendants or parents, the surviving spouse's portion will lessen in accordance with the statutory framework.

One exception to the prohibition of disinheriting a surviving spouse is through the use of a prenuptial or postnuptial agreement. The provisions regarding the statutory share do not apply if the spouses entered into a written contract, either before or during marriage, agreeing, in part, as to how estate assets will be distributed upon their deaths.

A spouse may be accidentally disinherited if the deceased spouse did not update his or her preexisting estate plan after marriage. If this is the case, the surviving spouse may elect to take the statutory share, as discussed above. A spouse may also be accidentally disinherited through the use of a funding formula in a will or trust to fund a marital gift or marital trust. Older trusts may have a funding formula that did not anticipate the current, high federal and state estate tax exemption, and so may direct the funding of the remainder of the decedent's estate up to the current exemption amount, which could be more than the decedent's estate. That could leave no estate assets to fund the marital gift or marital trust, which is distributed or held for the benefit of the surviving spouse, and full disinheritance if the surviving spouse is not a beneficiary of the remainder portion of the decedent's estate.

Lastly, a dissolution, divorce or annulment of a marriage will revoke any disposition or appointment of property in a will to the former spouse, unless the will expressly provides otherwise. In such a situation, the property will pass as if the former spouse failed to survive the deceased spouse. Other provisions appointing a former spouse to a fiduciary role will also be interpreted as if the former spouse failed to survive the deceased spouse. After a dissolution, divorce or annulment, a new estate plan will need to be executed to provide for a former spouse, if so inclined. However, under current law, such a dissolution, divorce or annulment will not revoke a beneficiary designation naming the former spouse.