If Your Spouse Abandoned You, Can They Still Inherit From You?

It goes without saying that being abandoned by a spouse is a devastating event. If your spouse abandoned you, your feelings toward him or her may be very complicated. You may have imagined confrontations with your spouse, but one thing you may not have considered is what would happen if you died before the spouse who abandoned you. If your spouse abandoned you, can they still inherit from your estate?

How Abandonment Affects the Right to Inherit

Ohio law is clear that a parent is barred from inheriting from a minor child they abandoned. Because a minor cannot legally execute a will, a minor who dies necessarily dies intestate (without a will). This statute makes it clear that a parent who abandoned a child, perhaps when the child was very young, cannot swoop back in years later and profit from the child's death.

The Ohio Revised Code does not have an analogous provision for spouses, however. This may be because, while a child cannot divorce a parent, an abandoned spouse has grounds for divorce in Ohio. One of these is willful absence of the adverse spouse for a year or more. However, some states do have laws barring inheritance from an abandoned spouse.

If your spouse abandons you in Ohio, and you choose not to divorce them, there exists the possibility that they could resurface at your death and try to claim part of your estate. Even if a court were to rule that they were not entitled to a share of your estate, the expense of litigating the issue could prove costly for your estate, leaving less for your intended beneficiaries to inherit even if they prevail in court.

Protecting Your Estate from a Spouse Who Abandoned You

Your best defense against the claims of an estranged spouse is to get a divorce. You should also update your estate plan, or get one for the first time if you don't have one—especially if you have minor children. A will allows you to name a guardian for your children in the event of your death. Otherwise, the spouse who abandoned you and them may be able to get custody of them. Because you will not be able to divorce immediately after your spouse's departure, you should do everything possible to protect your intended beneficiaries in the event you should die unexpectedly before you can divorce.

In addition to updating a last will and testament and living trust, however, there are other considerations. Do you have a life insurance policy with your estranged spouse named as beneficiary? If you have a retirement plan through work, are they named as beneficiary? Even with a will and an updated estate plan, if you forget to update your beneficiary designations, your estranged spouse could profit from your death. That is because a beneficiary designation may override a conflicting provision in a will.

Consult an experienced Ohio estate planning attorney for more suggestions on how to protect your probate estate from a spouse who abandoned you.