March 1, 2020
March 1, 2020
Estate law does allow some protections for a spouse in a decedent’s estate. A will alone cannot undo a spouse’s eligibility as an heir within the probate system. If a spouse is not named as a beneficiary or received an amount less than what would be allowed under Indiana probate law, the spouse can disclaim his or her interest in the Will in favor of the statutory elective share. Indiana probate law treats certain spouses differently such as subsequent spouses or spouses with no children, therefore to determine a spouse elective share against the estate, it’s important you contact an Indiana probate or estate planning attorney. A probate court is not restricted on what estate assets can be used to satisfy the spousal allowance. Assets and possessions overseen by probate courts include but are not limited to bank and investment accounts, financial accounts, real estate and personal property that is in the sole name of the deceased spouse. If property is held jointly with another with rights of survivorship or if the spouse has listed beneficiaries in a life insurance policy, those assets will pass by operation of law and are not part of the probate estate. If you and your spouse have agreed not to be a beneficiary of each other’s estate, then you will need a proper prenuptial or postnuptial agreement or trust in place to avoid potential challenges by your spouse to your estate. To protect your final wishes regarding estate distributions, local Noblesville lawyers at Webster & Garino will discuss with you the following legal strategies.
Prenuptial or Postnuptial Agreement
If your spouse willingly signs a prenuptial or postnuptial agreement that eliminates the spousal election in your estate, then you could exclude that person from your estate plan. Developing an agreement that removes spousal rights normally granted by the law generally requires guidance from a lawyer knowledgeable about family law and estate planning in Indiana.
At the same time you execute the prenuptial or the postnuptial agreement you will want to amend your estate planning documents to reference the spousal exclusion and the applicable agreement. In some cases, you may be better to revoke and rewrite your Will or Revocable Trust. .
Limit or Eliminate Probate
When a spouse does not agree to removal from your will, then you could prepare an estate plan that shifts assets away from probate review. The establishment of a revocable living trust will allow you to retitle many assets and place them within the trust. As possessions of the trust, those assets would then avoid probate. Some assets do not go through probate at all because they have payable-on-death beneficiaries, such as an annuity, IRA, or life insurance policy. However, a spouse could still file a claim with the Court requesting relief for the spousal election.
End the Marriage
Divorce could present a practical solution when you want to take your spouse out of your will. Finalizing a divorce, however, takes time, and the interim period before your spouse legally becomes your ex-spouse might not satisfy your needs. Consulting us at Webster & Garino about family law in Indiana could enable you to choose a viable strategy for your situation.
Speak With a Lawyer
Estate and family matters tend to be very sensitive, and legal advice can help you navigate these waters. At Webster & Garino, we practice both estate, probate and family law. Our insights can help you pursue your personal goals. Call (317) 565-1818 for a complimentary case review.
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