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Spouse Excluded From Will, What Are My Options in DC?

In general, a person has the ability to craft a Last Will & Testament (Will) to suit their personal wishes.  However, in many states, including D.C., there are laws in place that protect a spouse who has been disinherited or left out of the other spouse’s Will.  It is for this reason that some choose to create prenuptial agreements prior to marriage, where there is an explicit waiver of statutory rights of a spouse.  

A surviving spouse in DC has several rights: 

  • Right to an Elective Share: the purpose behind the elective share right is to ensure that a surviving spouse is financially protected and not left destitute.  The elective share gives the surviving spouse a fixed fraction of the estate, regardless of the length of the marriage.
    • The surviving spouse’s right to the elective share is governed by D.C Code, Section 19-113.
    • The elective share right entitles the surviving spouse to an elective share of the decedent’s net estate that is distributable under the Will. 
    • The surviving spouse can choose to either – take the elective share – or take what they are given under the Will, if anything.  
    • The elective share amount for the surviving spouse is the amount that the spouse would get if the other spouse died without a Will (i.e. died intestate), but cannot be more than ½ of the decedent’s net estate that is distributable under the Will.
    • There are some exclusions as to what makes up the decedent’s net estate. Specifically, a decedent’s revocable trust is excluded.  However, if assets were put in the revocable trust with the intention of reducing the surviving spouse’s elective share there is an argument that it should be included. 
  • Allowances and Exemptions: surviving spouse is entitled to receive the below allowances and exemptions regardless of the elective share.
    • Homestead Allowance: pursuant to DC Code, Section 19-101.02, a surviving spouse is entitled to a homestead allowance of $15,000.  Under DC law, the Homestead allowance is exempt from and has priority over all claims against the estate, except for court costs, funeral expenses not exceeding $1500, and fiduciary and attorney’s fees not exceeding $1000. 
      • The $15,000 can be in cash or the equivalent value in other property of the decedent (except for property which is specifically given to another in the decedent’s Will, unless there are insufficient assets to satisfy this allowance);
      • If there are insufficient funds to pay the Homestead allowance and the Family allowance, each allowance is paid in an equal, lesser amount.
    • Family Allowance: pursuant to DC Code, Section 19-101.04, a surviving spouse is entitled to a reasonable family allowance during the period of administration of the estate.  
    • Exempt Property Allowance: pursuant to DC Code, Section 19-101.03, a surviving spouse is entitled to an exempt property allowance of $10,000.  Meaning a surviving spouse is entitled to $10,000 in value of the decedent’s household property (furniture, furnishings, appliances, etc). 
  • Rights when there is No Will: where there is no Will, distribution of an estate is based on DC’s Intestacy laws:
    • The portion that the surviving spouse is entitled to receive under intestacy laws is impacted by other surviving family members of the decedent and surviving spouse and is dictated by DC Code, Section 19-302: 
      • Surviving spouse only + no children: surviving spouse is entitled to the entire estate;
      • Surviving spouse + surviving children who are also descendants of the surviving spouse and the surviving spouse has no other surviving descendants: surviving spouse is entitled to 2/3 of the estate;
      • Surviving spouse + no children + surviving parents: surviving spouse is entitled to 3/4 of the estate; 
      • Surviving spouse + one or more of the surviving children are not descendants of the surviving spouse, or all of the surviving children are descendants of the decedent and surviving spouse, and the surviving spouse has one or more surviving separate descendants: surviving spouse gets 1/2 of the estate.

It can be quite daunting to have to make financial decisions in the wake of processing and dealing with the loss of a spouse. Such important decisions should not be made alone, but rather in consult with an experienced attorney.  If your spouse has passed away and you need to determine how to obtain the financial distributions and allowances to which you are entitled, or if you have any other probate and estate needs, contact the probate and estate law attorneys at Krum, Gergely & Oates LLC immediately for a consultation. 

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