If I specified in my Will that my money go to my children with no portion ofit to my surviving spouse, would that work out?

UPDATED: Jan 3, 2012

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If I specified in my Will that my money go to my children with no portion ofit to my surviving spouse, would that work out?

My wife and I each have 2children from our prior marriages. I expect to inherit money from my parents’ estate, perhaps between $200,000 to $400,000, part of which I intend to invest. If I specify in my Will that my inherited money go to my children upon my death, would there be any problem in doing that, i.e., would my surviving spouse have any legal claim on any part of the inherited money, including any increased value, if any, due to profits from investing those monies?

Asked on January 3, 2012 under Estate Planning, New York


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Generally speaking, you can not disinherit your spouse from your estate.  Your spouse has to be able to inherit at least the amount they would if you had dies what is known as intestate or wothout a Will.  in some states it is a third of the estate.  In others it an be more.  Now, a spouse inherits differently in that they generally hold assets jointly with the other spouse.  So those assets go to them automatically upon death. Those joint assets can be weighed in determining a spouse's inheritane rights.  The inheritance that you are receiveing is your separate property as long as it remains that way - no co mingling - and that there is no intent to make it marital property.  So if you are planning on investing it have it go directly in to an acount with your name only on it.  I would not use this venue as a subtitute though for proper estate planning. Good luck.

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