Asking if your current spouse of many years can disinherit you is a question I hope you never have to ask. But, it’s an interesting query to say the least, and the answer may astound and amaze you.
It’s super uncomfortable, even for an estate planner like me, to think about my wife leaving me out of her estate plan, let alone her passing away. So, I’m going to use a hypothetical example.
Scenario: John, Mary, and the Lover
Let’s say John and Mary are legally married. One sad day, Mary has a massive heart attack and dies. John is shocked to discover that Mary had a valid will he knew nothing about. Far worse, Mary specifically disowned John, said John should get absolutely nothing, and instead Mary left her entire estate to her paramour (aka lover); someone John knew nothing about!
Wow, ice cold, Mary, ice cold.
What result? I’ll give you four options, pick which you think is most correct.
- The “manstress” gets everything, John gets nothing.
- John gets everything; the lover gets nothing.
- The lover gets everything, but only after a lengthy, awkward, and hard-fought court battle.
- The lover gets some of the estate, but so does John.
Have you picked?
Answer “D” is most correct, at least under Iowa law.
You see, under Iowa law, a spouse cannot completely disinherit another spouse (assuming they have a valid marriage and they are married at the time of the first spouse’s death).
Elective Share Law
Iowa has an “elective share” law. (You can read the specific Iowa Code Section here if you’re curious. The citation is Iowa Code § 633.237).
In Iowa, a surviving spouse chooses between inheritance under a will OR elective share in the deceased spouse’s estate. Until the surviving spouse files an affidavit for claiming elective share, it will be presumed that the surviving spouse will take the inheritance under the will.
In Iowa, the elective share of the surviving spouse comprises of all of the exempt personal property and 1/3 of the value of all real estate, after the debts have been paid off and 1/3 of whatever is remaining of personal property. The surviving spouse may occupy the homestead in lieu of taking the 1/3 share of real estate of the deceased spouse.
So, Can My Spouse, Disinherit Me?
Bottom line, my wonderful wife, Monica, cannot disinherit me so long as we are legally married. Even if she (or her lawyer) writes a will that states I should get not one single penny from her estate no matter what, I would still have the option of choosing an elective share. Obviously, in this case, just like in John and Mary’s situation, the decision will be an exceedingly easy one. The will give me zero, zilch, nada, nothing—of course I am going with the elective share option.
But you know what? The elective share is a narrow exception that proves the general rule. By that, I mean the following: one of the great reasons to do proper estate planning, is that you can give what you want, to whom you want, how you want, when you want. (And if you do NOT do proper estate planning, well, then, you leave it up to the Iowa Legislature and Iowa Courts to dispose of your property).
Again, it bears repeating: estate planning allows to give what you want, to whom you want, how you want, when you want. On top of accounting for your loved one in you estate plan, you also have the wonderful opportunity to help the cause or causes that you are most passionate about through charitable bequests in your will.
Want more on this subject? Check out this Facebook live video of me explaining this “in person.”
Have more questions about you will and estate planning? Maybe how you and your spouse can achieve your collective and individual goals? How about avoiding conflicts of interest? I offer everyone a free one-hour consultation. You can reach me anytime through email at firstname.lastname@example.org or call my cell at 515-371-6077. I’d truly love to hear from you!
Earlier this month we launched fireworks, grilled burgers, and spent time with loved ones while celebrating the Fourth of July. America’s Independence Day stands as a surrogate of sorts for the ideals that our great nation was built on. The Fourth of July has always been a special holiday for me, and my family, as my parents immigrated to America from Germany just before the Iron Curtain came down.
Along with life, liberty, and the pursuit of happiness, I like to highlight the freedom we have to give charitably to the causes and organizations that are important to us. The most economical, tax-wise philanthropy can involve unique strategies (like “bunching” multiple years’ worth of giving into one year) and gifting non-cash assets (such as appreciated stocks). You can also consider writing charitable bequests to the tax-exempt organizations you support into your estate plan. The bottom line? There are so many different, effective charitable giving tactics you can employ to support your community. In turn, it makes America an even better place to live!
I’ve blogged about many, many tax-wise charitable tools and techniques, but here are just four (in honor of July 4th) you ought to consider (in no particular order):
Charitable Gift Annuities (CGAs)
A charitable gift annuity is a contract. More specifically, it’s a contract between a donor and a charity, whereby the donor transfers cash or property to the charity in exchange for a partial tax deduction and a lifetime stream of annual income from the charity.
Charitable Remainder Trusts (CRTs)
A charitable remainder trust is a very useful type of trust. It’s an an irrevocable trust that generates a potential income stream for you, as the donor to the CRT, or other beneficiaries, with the remainder of the donated assets going to your favorite charity or charities. I break down CRTs here.
Charitable Lead Trusts (CLTs)
A charitable lead trust is perhaps most easily defined as the inverse to the charitable remainder trust (CRT). A charitable lead trust is an irrevocable trust designed to provide financial support to one or more charities for a period of time, with the remaining assets eventually going to family members or other beneficiaries.
We may forget with all the fancy tools and techniques that are available, but let’s not forget that a simple bequest, to the charity or charities of your choice, can be incredibly powerful! In fact, even a game changer for many nonprofits. Consider adding your favorite charity to your will. And if you don’t have a will yet, that’s the first step you should take. You can download my EPQ for free to get started on building the estate plan that will help provide for your family AND favorite causes.
Whatever your giving goals and financial situation, I can help you structure your philanthropic gifts, so they provide maximum tax-wise benefits, while also ensuring your charitable intent is both respected and followed. Get smart about giving and contact me at Gordon@gordonfischerlawfirm.com or 515-371-6077. I offer everyone a free one-hour consultation.
What do you think of when you think of July? I think about family picnics, vacations, fireworks, the MLB All Star Game, the beach, hometown festivals, and a cold bottle of beer on a hot day.
But mostly I think of Independence Day!
The Fourth of July means a great deal to me as the son of immigrants, with both a mother and father who risked all by leaving home forever, crossing an ocean, and coming to a country they didn’t even begin to yet know.
My parents were from in East Germany. Neither knew English. Neither had been outside of Germany. Indeed, neither had travelled at all very far from their homes—my dad’s small farming town and my mom’s city life in nearby Dresden.
In 1960, the wall divided East and West Germany, but was still just a bit porous. It wasn’t yet the Iron Curtain of the forthcoming years, where leaving was all but impossible.
My parents saw what was coming, or sensed it at least, and decided escaping was worth the enormous gamble. The dream was to make it to America, and become Americans.
With a day-long work visa, my dad went to West Germany. From there, you could pretty much do what you want – West Germany was a democracy with complete freedom of travel.
A Cabinet Maker’s Journey
My dad had the following possessions for a trip halfway around the world: a small suitcase of clothes and personal items; a rolled-up master’s degree in cabinet making; and $500 (in the form of five $100-dollar bills) squirreled away. That was all.
My dad arrived at Ellis Island with the good word from family acquaintances (from Czechoslovakia), who had emigrated to Chicago, that there was plenty of available work in the Windy City.
So, he took a Greyhound Bus from New York to Chicago. When he arrived at Chicago, no doubt feeling somewhat disoriented and overwhelmed, he almost had his suitcase (his one possession!) stolen by the bus driver.
(The bus driver had given him a claim check ticket, but now claimed the claim check ticket didn’t match, and that my dad couldn’t have his suitcase until this could all be figured out by the home office. My dad didn’t know about any home office, but he did know he couldn’t possibly even let the suitcase out his sight. The driver tried some more flim flam…my dad insisted on his suitcase…there was a standoff, and eventually the driver realized he’s needed to find a more gullible tourist, and relented.)
He lived in downtown Chicago with his family friends, worked two jobs, and wrote my mom often. It was understood by all that the mail was being opened and read, both by the East Germans and the Americans.
Eventually, my dad decided he was settled enough to have my mom come over. My mom followed the same path—day-long work pass to West Germany, boat trip to New York, bus to Chicago.
They worked four jobs between them, trying to save money. The dream, of course, was to save enough money to live in their very own apartment, buy a house, and ultimately raise a family.
They learned English by watching TV and trying to read the newspaper during the small windows of time when they weren’t working. But the folks they were in daily contact with, both at work and at home, were Czech.
Consequently, they ended up learning some pretty good Czech first! When they realized Czech as a second language was helpful, but not nearly as helpful as learning English was, they began speaking only in English. They would force themselves in all social situations to use English. They even opted for more TV, and forced themselves to go out into the city, to put themselves in situations where they would have to use English.
Of course, with this background, July 4th always held special meaning for my family. It was a holiday we always celebrated with a huge picnic, along with my parent’s other immigrant friends. And eventually the talk always circled back to giving thanks for being American, living in America, breathing free air. Every Independence Day I give a silent thanks to my parents for giving me the chance to be where I am today. All the work I do, to maximize charitable giving in Iowa, is a celebration of the opportunities we have to make our own lives and the lives of others better.
So, this Fourth of July take a moment to think about what being an American means to you. How does philanthropy and giving charitably fit into your vision for a better-together nation? I’d love to hear your thoughts as well as your family’s immigration story. Share in the comments below or reach out to me at any time!