Can You Leave Your Spouse Out of Your Will?
Love doesn’t always last forever, but sometimes it takes a long time to realize your relationship is over. Gray divorces are becoming more and more common around the world. People are growing comfortable enough to face their issues once the children are out of the house. This is a change that allows more people to get a divorce before needing to leave their spouse out of their will. But not everyone realizes in time and will be able to complete a divorce before they pass away. For this reason, they need a lawyer who can handle wills and trusts.
What Happens if a Spouse Dies Before a Divorce is Finished?
If a spouse dies during a divorce proceeding for any reason, the legal proceedings come to end, and the divorce is not complete. This means that any agreements to split assets, custody, or property are null and void. The surviving spouse will then become a widow/widower in the eyes of the law. This means they will receive their spouse’s assets in accordance with intestate laws if they don’t have a will, and estate laws if they do.
In Pennsylvania, this means that anything you currently own jointly with your spouse will become solely theirs. The rest of your estate, liquid capital, and financial holdings, will follow your current will. If your spouse feels they were not adequately provided for by your will, they can file a suit to receive more. Updating your will alone is not always enough.
If you don’t have a will, the situation can potentially be even worse. Dying without a will is to die intestate. There is a different process for splitting your assets if you die this way. If you don’t have children, your spouse will receive everything, and if you do, it will be split evenly between your spouse and children, depending on the number of children.
“Should I Leave My Spouse Out of My Will?”
Leaving out someone who would be expected to be in your will, such as your children, a family member, or your spouse can go a number of ways. If you don’t mention them, the court will assume that you failed to do so for some unknown reason and change the distribution of your assets in most cases. If you actively point out that you are leaving your spouse with nothing, the court can override that depending on your reasoning or if your spouse argues that they need your resources to maintain their lifestyle.
In reality, you can leave your spouse out of your will, but there’s little guarantee that you will achieve your desired results. There are better solutions to make sure that your spouse doesn’t receive your assets after you pass away.
“What Should I Do Instead of Leaving My Spouse Out of My Will?”
The best option for protecting your assets from a spouse you can’t divorce in time is to use a trust. Wills dictate where you want your assets to go, but don’t own anything themselves. To keep assets from your spouse, you want to put them into an account that a spouse can’t touch or claim ownership of. This would be a trust, and there are different types of trusts to match your type of asset.
Trusts can retain ownership of the asset until the intended recipient meets a criterion the trust creator decided on. This criterion can be that the recipient has to reach a certain age, for example. They are technically not under your ownership but the trust’s. In certain circumstances, you can set up a trust that you yourself can still take from.
Having a trust is also a good way to avoid probate court, which is where your estate would be split apart and given to the spouse you want to keep it all from. So rather than try to leave your spouse out of your will, you should create a trust and place the most important rights to your estate in them.
Contact Mazzoni Valvano Szewczyk & Karam for Help
To help you keep your assets, you need a wills and trusts attorney who can handle the logistics and legality of your estate. The attorneys at Mazzoni Valvano Szewczyk & Karam can take a look through what you own and determine what type of trust would be best for your estate. We will also consider who you want your assets to go to instead of your spouse.
Depending on who your trust gives your assets to and what assets it holds, we can create one or multiple trusts for your estate. We’ll do everything we can to make sure that should you pass away before you finish your divorce, your spouse won’t receive your assets. Contact our wills and trusts lawyers today for support.
