I am separated from my spouse. Does my will supercede any spousal inheritance?

My wife has engaged in several acts of infidelity and as such, is now living elsewhere. We have been separated for 7 months, and will get divorced at 12 months, according to NC State Law assuming she cooperates I am doing a bit of traveling for work now and based on risk, I want to be certain my entire estate, or as much as legally possible, goes to my brother and NOT the wife for obvious reasons. Normally, I would wait for the divorce and then it is a non-issue, but what if something happens to me when I’m traveling? Does a separated wife have any claim to inheritance? We have been married 7 years and have zero children.

Asked on June 8, 2017 under Estate Planning, North Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Your state allows a spouse to claim an "elective share" even if she is disinherited by a will; that is, there is a state law preventing someone from disinheriting his or her spouse entirely. The amount they can get, no matter what the will says, varies by how long you have been married, from a low of 15% (if married less than years when you pass away) to a high of 50% (if married more than 15 years at time of death). So if you are stlll married when you pass away, no matter what you do, she will get between 15% and 50% of your total estate (all assets). You can leave everything to your brother in the will and state in it that you do not want your wife or ex-wife (name her by name, too, to make it clear who she is) to receive more than any minimum set by law as based on your marital status at the time of your death, but be aware that until you and she are divorced, she has a right to a portion of your estate.


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