Can a Wisconsin resident disinherit a spouse?

A fellow caregiver asked...

Can a Wisconsin resident disinherit a spouse by having a new will made that does not name the spouse?

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Merely making a will that's mum on leaving property to a surviving spouse will not accomplish the mark you wish to hit.

The community property states -- and Wisconsin is one, along with Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Alaska if spouses sign an agreement creating community property -- have their own very specific and very strict rules about what spouses own during life and at death.

Basically, each spouse automatically owns half of what either one earned during the marriage, unless they have a written agreement to the contrary.

In most circumstances, a surviving spouse cannot be completely cut out of a will. If a will simply doesn't mention a surviving spouse, the law will still step in and resume he or she is entitled to a share of the property.

The Wisconsin Marital Property Act gives spouses one-half of certain assets and income accumulated during the marriage. A surviving spouse also can receive a portion of the deceased spouse's estate and select certain items of personal property. And a court also may award a surviving spouse an allowance for support from the deceased spouse's estate.

Spouses may give up the right to be included in each other's estates if they both sign a properly written marital property agreement.