Spouses sometimes fall subject to forgetting to take their ex off of their financial and investment accounts. If you forget to take your ex off as the beneficiary of your accounts then there is little to nothing that you can do after the fact. As such, give a full check of your beneficiary designations if you or your spouse has mentioned divorce.
What if I disinherit my spouse in my will? A marriage can only end in two ways. (1) decree of court (2) or by death of a spouse. If you pass away before your divorce is memorialized in a divorce decree then your spouse will receive their statutory one-half of the community property regardless of the provisions in your will. This is true even if your marriage is defunct. Your spouse also will retain the right to administer the community property.
Similarly, your spouse will retain the ability to petition for an award of homestead. The purpose of the award is to provide for the surviving spouse's needs (or those of decedent's children by another partner, under certain conditions) during the pendency of probate. The probate court possesses discretionary jurisdiction to make an allowance from the estate for the maintenance of the family. The court will use its discretion to consider the relationship of the spouses and any excessive consumption of the surviving spouse.
Lineal Descendants: Be careful with the terminology lineal descendants in your will. Your ex will likely be a lineal descendant of your child, potentially creating a very unintended beneficiary.
What if my spouse leaves me out of their will?
If your spouse's will fails to name you after the will's execution and you survive your spouse, then you are referred to as an "omitted spouse" or "omitted domestic partner". As an omitted spouse or domestic partner you must receive a portion of the decedent's estate as provided:
The omitted spouse or omitted domestic partner must receive an amount equal in value to that which the spouse or domestic partner would have received under RCW 11.04.015 if the decedent had died intestate, unless the court determines on the basis of clear and convincing evidence that a smaller share, including no share at all, is more in keeping with the decedent's intent. In making the determination the court may consider, among other things, the spouse's or domestic partner's property interests under applicable community property or quasi-community property laws, the various elements of the decedent's dispositive scheme, and a marriage settlement or settlement in a domestic partnership or other provision and provisions for the omitted spouse or omitted domestic partner outside the decedent's will.
RCW 11.12.095(3). When determining whether the omitted spouse rule applies the court considers the following:
(a) A spouse or domestic partner identified in a will by name is considered named whether identified as a spouse or domestic partner or in any other manner.
(b) A reference in a will to the decedent's future spouse or spouses or future domestic partner or partners, or words of similar import, constitutes a naming of a spouse or domestic partner whom the decedent later marries or with whom the decedent enters into a domestic partnership. A reference to another class such as the decedent's heirs or family does not constitute a naming of a spouse or domestic partner who falls within the class.
(c) A nominal interest in an estate does not constitute a provision for a spouse or domestic partner receiving the interest.
RCW 11.12.095. As an omitted spouse you must receive an amount equal in value to that which you would have received under RCW 11.04.015 if your spouse had died intestate, unless:
[T]he court determines on the basis of clear and convincing evidence that a smaller share, including no share at all, is more in keeping with the decedent's intent. In making the determination the court may consider, among other things, the spouse's or domestic partner's property interests under applicable community property or quasi-community property laws, the various elements of the decedent's dispositive scheme, and a marriage settlement or settlement in a domestic partnership or other provision and provisions for the omitted spouse or omitted domestic partner outside the decedent's will.
RCW 11.12.095(3).
Am I considered a creditor? If your spouse omits to add you onto their will or an investment account, for example, then you my be considered a creditor. If this happens to you, even if you're the executor, you should seek legal advice as to whether you should file a creditors claim against the estate.
As always speak to an attorney about any potential future interests.
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