Can You Disinherit Your Spouse? Elective Share and Prenups

Can You Disinherit Your Spouse? The Short Answer

No U.S. state permits you to fully disinherit a spouse who has not agreed to it in writing. Even if your will leaves everything to your children, a charity, or anyone else, your surviving spouse can claim a legally mandated minimum share of your estate.

Two mechanisms create this floor:

1. Elective share (common law states): The surviving spouse can "elect against" the will and receive a statutory fraction of the estate, typically one-third to one-half.
2. Community property (nine states): The surviving spouse automatically owns one-half of all property acquired during the marriage, regardless of what any will or trust says.

The only reliable path to disinheritance is an express written waiver, almost always found in a prenuptial agreement or postnuptial agreement. Without one, estate plans that exclude a spouse are vulnerable to a legal claim that can redirect a substantial portion of the estate.

What Is the Spousal Elective Share?

The elective share (also called a statutory share, forced share, or right of election) is a state law provision that guarantees a surviving spouse a minimum percentage of the deceased spouse's estate. It exists to prevent one partner from leaving the other with nothing.

Here's what you need to know about how it works:

• Percentage range: Most states set the share at one-third to one-half of the estate, though the exact amount varies.
• Overrides estate planning documents: The elective share supersedes whatever a will or trust says. If a will leaves nothing to the surviving spouse, the spouse can petition the court to claim their statutory share.
• Probate estate vs. augmented estate: Some states calculate the share from the probate estate only, which includes assets held solely in the deceased spouse's name without a beneficiary designation. Other states use the augmented estate, a broader calculation that adds nonprobate transfers such as revocable trusts, life insurance proceeds, retirement accounts with beneficiary designations, and jointly held property. States using the augmented estate make it much harder to move assets beyond the reach of the elective share.
• Petition requirement: In many states, the surviving spouse must affirmatively petition the court to claim the elective share. It is not always awarded automatically.

The elective share reflects a core legal principle: marriage creates financial obligations that survive death, and one spouse's estate plan cannot unilaterally erase those obligations.

How the Elective Share Differs by State

Elective share rules differ in percentage, what counts as the estate base, filing deadlines, and petition procedures. The table below compares several states to illustrate the range.

A few patterns stand out:

• Augmented estate states (like New Jersey and Virginia) pull nonprobate transfers into the calculation. Simply retitling assets or naming someone else as a beneficiary will not reduce the surviving spouse's share.
• Community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) generally do not have a traditional elective share because the surviving spouse already owns half of the community property. However, a spouse can still direct their own half to someone else through a will or trust.
• Deadlines vary. Some states measure the election deadline from the date of death, others from the admission of the will to probate or from service of notice. Missing the deadline typically forfeits the right.

How a Prenup or Postnup Waives the Elective Share

An express written waiver in a prenuptial or postnuptial agreement is the primary tool to waive the elective share. Nearly every state recognizes this type of waiver, but enforcement depends on meeting specific requirements.

Core Requirements for an Enforceable Waiver

1. In writing and signed. Every state requires the waiver to be a written document signed by the spouse giving up the right. Oral agreements are not sufficient.
2. Voluntary execution. The waiver must be signed voluntarily, without coercion or duress. A spouse who can prove they were pressured into signing may successfully challenge the waiver.
3. Fair financial disclosure. Most states require that the spouse waiving the elective share received a fair and reasonable disclosure of the other spouse's property and financial obligations before signing. In Virginia and Utah, a spouse who was not given adequate disclosure and did not expressly waive the right to disclosure in writing can challenge the waiver as unconscionable.
4. Witnesses (in some states). Florida is notable for requiring the waiver to be signed in the presence of two subscribing witnesses. Not all states impose this formality, but failing to meet it where required can invalidate the waiver entirely.

Independent counsel for each partner is highly recommended for an enforceable prenup.

The Hugh Hefner Example

A well-known illustration of a valid elective share waiver involves Hugh Hefner's estate. Hefner left his entire approximately $55 million estate to his four children, completely disinheriting his third wife, Crystal Harris. This was possible because Harris had signed a prenuptial agreement that included a written waiver of her spousal right of election. The waiver was validly executed in accordance with applicable law, so it was enforceable despite fully excluding her from the estate. Harris did receive a $5 million house under separate arrangement, but the estate itself passed entirely to Hefner's children.

When a Waiver Can Be Challenged

A waiver is not automatically bulletproof. Courts can invalidate it if the surviving spouse proves:

• Involuntariness: The spouse was coerced, misled, or did not understand what they were signing.
• Unconscionability at execution: The terms were grossly unfair at the time of signing, and the waiving spouse was not given adequate financial disclosure and did not voluntarily waive the right to that disclosure. Under Virginia law, unconscionability is decided by the court as a matter of law.

The burden of proof generally falls on the surviving spouse challenging the waiver. But a poorly drafted or hastily signed agreement, especially one without documented financial disclosure, gives a court reason to look closely.

Step-by-Step: Planning an Estate That Accounts for Spousal Rights

Whether you want to leave your spouse a different share than the law provides or your spouse is willing to waive their elective share entirely, following an orderly process increases the likelihood your plan will hold up.

Step 1: Confirm Your State's Rules

Determine whether you live in a common law state (elective share) or a community property state. Identify the applicable percentage, the estate base (probate vs. augmented), and any filing deadlines. If you've moved states during your marriage, check whether your new state's laws apply.

Step 2: Discuss Intentions as a Couple

Estate planning works best when both partners understand and agree on the goals. If one partner has children from a prior relationship or significant separate property, talk through how those realities fit into your shared plan. As Michael C. Cotugno, Esq., Managing Partner, Neptune Legal, puts it: "Understanding a partner's relationship with money, their historical experiences of abundance or scarcity, their anxieties tied to financial stability, or their personal definitions of success, allows for a deeper, more empathetic understanding of them as a whole individual."

Step 3: Draft a Prenup or Postnup with Waiver Language

Work with a licensed estate or family law attorney to draft an agreement that includes an explicit waiver of the elective share (and, if desired, homestead allowance, exempt property, and family allowance). The waiver language should be specific, not buried in general clauses. Many states interpret a waiver of "all rights" in the property or estate of a spouse as a waiver of the elective share, but explicit language is always safer.

Step 4: Provide Full Financial Disclosure

Both partners should exchange complete financial information, including assets, debts, income, and business interests. Document the disclosure in writing and attach schedules to the agreement. This step is not optional; it is the most common failure point when waivers are later challenged.

Step 5: Execute with Proper Formalities

Sign the agreement according to your state's requirements. In Florida, that means two subscribing witnesses. In other states, notarization may be required or strongly recommended. Each partner should sign with their own independent attorney present or after having had a reasonable opportunity to consult one.

Step 6: Update Your Estate Plan to Match

Once the waiver is in place, update your will, trusts, beneficiary designations, and account titling to reflect the agreed-upon plan. A waiver that conflicts with the estate plan can create confusion and litigation.

Pre-Finalization Checklist

• [ ] State elective share rules confirmed (percentage, estate base, deadline)
• [ ] Both partners have discussed and aligned on estate planning goals
• [ ] Full written financial disclosure exchanged and documented
• [ ] Prenup or postnup drafted with explicit elective share waiver language
• [ ] Agreement signed with proper formalities (witnesses, notarization as required)
• [ ] Each partner had access to independent legal counsel
• [ ] Will, trusts, and beneficiary designations updated to reflect the agreement
• [ ] Copies of all documents stored securely and accessible to personal representatives

Important: Steps 3 through 6 involve legal drafting and execution requirements that vary by state. These steps should be completed with the guidance of a licensed estate planning attorney in your jurisdiction. General information here does not substitute for individualized legal advice.

Community Property States: A Different Framework

In the nine community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), the surviving spouse already owns one-half of all community property acquired during the marriage. This ownership is automatic and does not depend on a will, trust, or court petition.

Here's what that means in practice:

• No traditional elective share: Because the surviving spouse owns their half outright, most community property states do not have an elective share statute. The concept is unnecessary when the surviving spouse's ownership interest is built into the title of the property itself.
• The deceased spouse's half is still theirs to direct. A spouse in a community property state can leave their own half of community property to anyone they choose through a will or trust. They simply cannot touch the surviving spouse's half.
• Separate property is different. Property one spouse owned before marriage, or received as a gift or inheritance during marriage, is typically separate property. A spouse generally has full control over their separate property in their estate plan.
• Prenups and postnups can change the rules. A prenuptial or postnuptial agreement can reclassify community property as separate property (or vice versa), altering the default 50/50 split. This is the primary mechanism for changing community property outcomes at death.

If you live in a community property state, your estate planning focus is less about the elective share and more about correctly classifying assets as community or separate, and ensuring your will or trust disposes only of property you actually have the legal right to give away.