A Spouse's Right to Inherit

In most circumstances, a surviving spouse cannot be completely cut out.

Community property states

The community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin; in Alaska, spouses can sign an agreement creating community property) have their own rules about what spouses own and can claim. Basically, each spouse automatically owns half of what either one earned during the marriage, unless they have a written agreement to the contrary. Each spouse can do whatever he or she likes with that half-share of the community property and with his or her separate property. (For help sorting out what's community property and what's separate property, see Married Couples: Who Owns What.)

Other states

In all other states, there is no rule that property acquired during marriage is owned by both spouses. To protect spouses from being disinherited, most of these states give a surviving spouse the right to claim one-fourth to one-third of the deceased spouse's estate, no matter what the will provides. In some states, the amount the surviving spouse can claim depends on how long the couple was married.

These provisions kick in only if the survivor goes to court and claims the share allowed by law. If a surviving spouse doesn't object to receiving less, the will is honored as written.

Example:

Johanna's will leaves $80,000 to her fourth husband, Fred, and divides the rest of her property, totaling almost $500,000, among her three sons from previous marriages. If Fred is happy with his inheritance, everything will go according to Johanna's plan. But if Fred wants more, he can claim a share of Johanna's estate--and get substantially more than $80,000. If he does, Johanna's three sons will take what's left.

If you don't plan to leave at least half of your property to your spouse in your will and have not provided for him or her generously outside your will, you should consult a lawyer unless your spouse willingly consents in writing to your plan.