I am separated from my spouse. Does my will supercede any spousal inheritance?

UPDATED: Sep 30, 2022

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I am separated from my spouse. Does my will supercede any spousal inheritance?

My wife has engaged in several acts of infidelity and as such, is now living elsewhere. We have been separated for 7 months, and will get divorced at 12 months, according to NC State Law assuming she cooperates I am doing a bit of traveling for work now and based on risk, I want to be certain my entire estate, or as much as legally possible, goes to my brother and NOT the wife for obvious reasons. Normally, I would wait for the divorce and then it is a non-issue, but what if something happens to me when I’m traveling? Does a separated wife have any claim to inheritance? We have been married 7 years and have zero children.

Asked on June 8, 2017 under Estate Planning, North Carolina


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Your state allows a spouse to claim an "elective share" even if she is disinherited by a will; that is, there is a state law preventing someone from disinheriting his or her spouse entirely. The amount they can get, no matter what the will says, varies by how long you have been married, from a low of 15% (if married less than years when you pass away) to a high of 50% (if married more than 15 years at time of death). So if you are stlll married when you pass away, no matter what you do, she will get between 15% and 50% of your total estate (all assets). You can leave everything to your brother in the will and state in it that you do not want your wife or ex-wife (name her by name, too, to make it clear who she is) to receive more than any minimum set by law as based on your marital status at the time of your death, but be aware that until you and she are divorced, she has a right to a portion of your estate.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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