What Are Spousal Rights in Estate Planning

Estate planning is more than just deciding who gets what after you pass away—it’s about protecting the people you love. For married couples, that often means making sure your spouse is financially secure and legally protected, no matter what the future holds.

Whether you're newly married or revisiting your estate plan later in life, understanding spousal rights is critical. Many state and federal laws automatically grant certain protections to spouses, but relying solely on default rules can result in unintended consequences. A tailored estate plan ensures that your spouse receives the inheritance, access, and support you intend for them.

Key Spousal Rights in Estate Planning

Each state’s laws vary, but most offer foundational rights to a surviving spouse. Knowing these rights—and planning around them—helps avoid disputes, delays, or disinheritance.

1. Elective Share

• In many states, the surviving spouse has the legal right to claim an “elective share” of the deceased’s estate—regardless of what's written in the will. This typically ranges from one-third to one-half of the estate and is designed to prevent a spouse from being completely disinherited, intentionally or not.

• If a will leaves less than the elective share (or nothing at all), the surviving spouse can petition the probate court to claim their share.
• This right overrides most other distributions unless it’s explicitly waived (e.g., in a prenuptial or postnuptial agreement).

• For a practical view on safeguarding family wealth through strategic planning, see this estate planning case study.

2. Community Property

• If you live in a community property state (such as California, Texas, Arizona, or Nevada), any assets acquired during the marriage are generally considered jointly owned by both spouses—even if only one name is on the title.

• Upon death, half of the community property automatically belongs to the surviving spouse.
• The remaining half may be distributed according to the will or trust—but it must respect the spouse’s property rights.

• Planning in community property states must be precise, especially when one spouse has separate property (acquired before marriage or by inheritance) that may become co-mingled.

3. Homestead Rights

• Homestead laws in many states protect a surviving spouse’s right to continue living in the marital home—even if the property was titled solely in the deceased spouse’s name.

• In some states, the surviving spouse may inherit the home, retain a life estate, or be allowed to reside rent-free for a certain period.
• These rights can override provisions in a will that attempt to transfer the home to someone else.

• This is especially important in blended families, where children from previous relationships may be named as heirs.

4. Retirement Accounts & Benefits

• Under federal law—specifically ERISA (Employee Retirement Income Security Act)—a surviving spouse is the default beneficiary for certain retirement accounts, including:

• 401(k)s
• Pension plans
• Other employer-sponsored retirement accounts

• A spouse must give written, notarized consent to name someone else (such as a child or trust) as the beneficiary. Without that consent, the spouse has a legal claim to the account, even if someone else is named.
• To learn more about handling these assets with legal precision, explore why an attorney-drafted will is better than an online template.

5. Social Security & Pension Survivor Benefits

• Spouses may be eligible for various survivor benefits after a partner passes away:

• Social Security: Surviving spouses can collect up to 100% of their deceased spouse’s benefit (depending on age and other factors). Divorced spouses may also qualify if the marriage lasted at least 10 years.
• Pensions: Many pensions include a joint-and-survivor option, providing ongoing income to a surviving spouse after the retiree’s death. This choice should be coordinated with your estate planning and financial goals.

• For more details, visit the U.S. Social Security Administration – Survivor Benefits.

Coordinating Your Estate Plan for Spousal Protection

Spousal rights offer a legal foundation—but personalized estate planning ensures you’re in control, not just the state’s default rules. Here’s how to align your plan with your intentions:

Update Beneficiaries Regularly

• Marriage, divorce, death, or the birth of a child should always trigger a review of:

• Life insurance policies
• Retirement accounts
• Payable-on-death (POD) or transfer-on-death (TOD) accounts
• Wills and trusts

• Failing to update these designations can lead to assets going to an ex-spouse or unintended beneficiary.
• Read more in The Role of a Trustee in an Estate Plan.

Use Trusts to Manage Joint and Separate Property

• Trusts are a powerful tool to:

• Avoid probate
• Clarify property ownership (especially in blended families or second marriages)
• Provide income for your surviving spouse while preserving assets for children or heirs

• Consider a revocable living trust for flexibility or an irrevocable trust for tax and asset protection benefits.
• For deeper insight, see The Benefits of an Irrevocable Trust.

Seek Legal Counsel to Navigate State Laws

• Estate planning laws—especially those governing spousal rights—vary by state. An experienced estate planning attorney can help you:

• Navigate elective share rules, homestead exemptions, and community property laws
• Draft prenuptial/postnuptial agreements to clarify ownership and inheritance intentions
• Coordinate beneficiary designations with your broader estate strategy
• Protect both individual and joint interests

Common Mistakes to Avoid

• Leaving everything to the surviving spouse without a contingency plan
• What happens if both spouses die simultaneously? Naming contingent beneficiaries and backup fiduciaries is essential.

• Assuming your spouse will automatically get everything
• While many assets do pass directly to a spouse, others may not—especially if titled individually or controlled by outdated documents.

• Not considering long-term care or incapacity
• Spousal protections aren’t limited to death. Planning for incapacity with tools like a healthcare proxy, durable power of attorney, and HIPAA release is equally important.

Final Thoughts

Estate planning isn’t just about passing on assets—it’s about protecting the people you care about most. By understanding and honoring spousal rights, you can ensure that your partner is financially secure, legally protected, and able to carry out your shared legacy with confidence.

Whether you’re newly married, entering a second marriage, or planning for retirement, now is the time to align your estate plan with your values, your relationship, and your long-term goals.

“A strong estate plan honors your spouse not just with love, but with protection, clarity, and peace of mind.”