Intentionally Excluding your Spouse in Your Will

Can I legally exclude my spouse from my Will? Yes. In most cases, spouses leave their entire estates to one another. However, there are a number of reasons that someone may decide to exclude their spouse, such as issues within the marriage, Medicaid planning, or other financial planning.

Can my spouse object to being excluded? Yes. Upon your passing, your spouse has a right by statute to elect against your Will. The statute calls in a list of assets that are subject to this election and provides a list of exclusions. How much is my spouse legally entitled to if he/she is excluded in my Will? If your spouse chooses to make an election against the estate, he/she will be entitled to one-third of the total includable assets. In some cases, the testator (person making the Will) may choose to leave one-third of the estate to the spouse in his/her Will to simplify the issues after death. How long does my spouse have to make this election?

Pennsylvania law states that "[t]he election must be filed with the clerk before the expiration of six months after the decedent's death or before the expiration of six months after the date of probate, whichever is later."

If you are considering excluding a spouse, or if your spouse has excluded you in his/her Will, you should consult with an estate attorney before taking any action. We can help you avoid costly mistakes.