Can one spouse override the will of the other spouse?

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Can one spouse override the will of the other spouse?

If one bequeaths something to one’s spouse in their Will, which upon the spouse’s death should transfer to the children, can the spouse override the Will and decide to bequeath those goods to someone else? Could you point me to some kind of law on this issue?

Asked on December 2, 2011 under Estate Planning, Illinois

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Good question. Spouses living in a community property state cannot gift away more than one half of their own interests in the community assets of the marriage. So with that being said, a surviving spouse whose interests in the community property beyond the 50% owned by him or her can contest a Will or trust where the first spouse gave away more than his or her share in the community.

Likewise, one spouse cannot give away the separate property of another in a Will or trust. In the above examples there can then be a Will or trust contest by the surviving spouse. 


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