Can my Wife Disinherit Me? The Answer may Surprise You.
In Iowa, Spouses Can’t Disinherit Spouses
Can Monica, my wife, disinherit me? In a word, no.
Assuming a valid marriage in Iowa, a spouse cannot disinherit a spouse. Even if a spouse wants to do so, even if that’s the spouse’s true intent—nope.
What if in a legal will, the first-to-die spouse includes the following clause:
“I acknowledge that I have a spouse, named Gordon Fischer, who is not provided for in this will. It is my specific intention to not provide for my spouse Gordon Fischer under the terms of my will.”
Even with a clear clause like this, I, Gordon, am not disinherited. Why is this so?
Statutory “Forced Share”
An Iowa statute allows spouses to take a “forced share” against the will. In short, the surviving spouse has a choice; the spouse can inherit any property bequeathed to him/her under the will, OR the spouse can take a forced share. So, even if a will leaves nothing for the surviving spouse, the surviving spouse can take a forced share against the will.
Under Iowa law (specifically, Iowa Code § 633.238), a surviving spouse that elects against the will is entitled to:
- One-third of the decedent’s real property;
- All exempt personal property that the decedent held; and,
- One-third other personal property of the decedent that is not necessary for payment of debts and other charges.
In other words, a surviving spouse can choose (elect) after your death to basically ignore your will or trust that doesn’t provide for said surviving spouse, and take approximately one-third of your estate.
For example, if you left your entire estate to your children and not your spouse, your spouse can say, “You know, I don’t like this at all. I’ll take one-third of my dead spouse’s estate. Thank you!” And, pretty much just like that, boom, the surviving spouse can do so.
Oral Agreement to Disinherit
What if Monica and I talk about this matter and come to an oral agreement. Something like this:
Monica: I want to disinherit you. Should you be the surviving spouse, you should get nothing.
Gordon: Wow. That hurts. But if that’s what you want honey, I agree.
Is this agreement enforceable? No, for several reasons. First, it’s not written and oral agreements are generally unenforceable. Also, it doesn’t and can’t displace the plain language of an Iowa statue which allows a spouse to elect a forced share against the will, and gain one-third of the estate. You can’t orally agree to ignore a statute’s clear intent!
Written Agreement to Disinherit
But what if Monica asked me to agree, in writing, to not take a spousal share? Say, we write up a formal contract stating I’m essentially not getting anything under Monica’s will, no how, no way. I also agree in the contract that under no circumstances will I take a statutory share.
Would such a written contract be enforceable? No.
While Iowans have a great deal of freedom to contract, just like the above oral agreement example, you can’t contract in direct opposition to a clear statute.
Also, interestingly, Iowa courts have ruled postnuptial agreements are not enforceable.
Postnuptial agreements are written contracts between spouses that are executed after the couple has married (as opposed to the prenuptial agreements you usually hear about). Iowa courts have struck down postnuptial agreements for nearly a century, since 1912 when the Iowa Supreme Court first found postnuptial agreements to be of no validity. In re Kennedy’s Estate, 135 N.W. 53 (Iowa 1912).
But Monica, it’s OK. Very likely you’ll be the surviving spouse anyway.
Beyond just your spouse, it’s important to have an updated estate plan to define all of your beneficiaries and wishes for your estate following your death. Have questions or need more information? Feel free to reach out any time. You can contact me by email at Gordon@gordonfischerlawfirm.com or give me a call at 515-371-6077.