In many states, the law gives a surviving spouse certain protections — which generally means it can be difficult to leave a spouse out of a Will entirely. How these protections work varies, but broadly, states fall into two systems:
"Common law" property states: in most of these states, a surviving spouse who's been left little or nothing can choose to claim a minimum share of the estate set by state law — often called an "elective share" — instead of what the Will provides. The size of that share differs from state to state.
"Community property" states: in these states, each spouse is generally considered to already own half of the property built up during the marriage. A Will typically covers the Will-maker's own share, while the surviving spouse keeps theirs.
Some states also give a surviving spouse rights connected to the family home. And in many states, spouses can waive these protections in writing — for example, through a prenuptial or similar signed agreement.
Because the details vary so much by state, if you're thinking about leaving your spouse little or nothing, you may wish to speak with an estate planning attorney in your state before completing your Will.
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