The Elrod Firm

ASK THE PROS

Can I Disinherit My Spouse?

Melissa, my wife and I have always kept our finances separate.  She has plenty of money and doesn’t need anything from me, so when I die, I want all my money to go to my son and my grandson.  Does Arkansas law require me to leave something to my wife?  – Karl

Karl, the short answer to your question is, yes, Arkansas law requires you to leave something to your wife, unless your wife signs off and releases all her interest in your estate.  This is true no matter if you use a Last Will and Testament, a Revocable Living Trust, or some combination of the two. 

The Arkansas Code says that if a married person dies and leaves behind a Will, the surviving spouse shall have the right to “take against the will” if they were married longer than one (1) year.  This means that even if you prepare a Will that leaves everything to your son and grandson and leaves nothing to your wife, your wife can file a petition with the court and elect to take against the Will. 

If she does, she gets her share (the share the law would give her if you died without a Will) before anyone else gets theirs.  You might wonder if you could disinherit your wife using a Trust instead of a Will.  Mr. H. Ripley Thompson tried to do this very thing, and after his death, his wife sued his estate claiming that her share should include his Trust, even though he clearly left her out of it.  In a 2014 decision, the Arkansas Supreme Court agreed with the wife and allowed her to have her spousal share of all of Mr. Thompson’s property, including the property of his Trust. 

To make sure your estate does not end up in court like Mr. Thompson’s, call today to set up a no-charge strategy session to find out how we can help with issues like this.  To learn more, check out our website, ElrodFirm.com.

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