Can You Legally Disinherit a Spouse in Your Mississippi Will? (Elective Share Rules)

When planning your estate, you might assume that you have the absolute right to leave your property to whoever you choose. While this is mostly true, Mississippi law fiercely protects surviving spouses from being left destitute. Under Miss. Code Ann. § 91-5-25 and Miss. Code Ann. § 91-5-27, you cannot intentionally disinherit your spouse without their written consent, such as through a prenuptial or postnuptial agreement.

If your will explicitly states that you are leaving your spouse nothing, or if you simply forget to include them, they are not out of luck. The law allows them to claim their 'elective share' of your assets. Estate battles over spousal rights can tear families apart, especially in second marriages involving stepchildren. Hiring a knowledgeable local attorney from our US Lawyers Directory can help you legally structure your assets, utilizing trusts and agreements, to ensure your wishes are honored at the DeSoto County Chancery Court, Hernando or whichever local court handles your estate.

Step-by-Step Process in Mississippi

Understanding how the elective share works is critical for anyone writing a will in Mississippi. Here is how the courts handle attempts to disinherit a spouse.

Step 1: Understanding the Spousal Elective Share

If you leave your spouse out of your will, they have the right to claim a specific portion of your estate. They are entitled to a 'child's share' of the estate. For example, if you have two children, your estate is divided into three equal parts (one for each child, one for the spouse). Your spouse would get one-third. However, the law caps this so the spouse never receives more than one-half of the total estate, even if there are no children.

Step 2: How Length of Marriage Affects This

Some states use a sliding scale where a spouse gets a larger percentage the longer the marriage lasted. Mississippi does not do this. Whether you were married for 30 years or 30 days, the surviving spouse's right to an elective share remains exactly the same-tied to the 'child's share' rule. However, the court will look at the surviving spouse's own separate property. If the surviving spouse already has personal wealth that is equal to or greater than their legal share of your estate, the court may deny or reduce their elective share claim.

Step 3: Protecting Assets for Business Owners

If you own a small business in Tupelo or Southaven, a sudden elective share claim by a surviving spouse can force the liquidation of your company. To protect your business partners and ensure the company goes to the intended heirs, you cannot rely on just a will. You must use tools like a valid prenuptial agreement, where the spouse voluntarily waives their right to the elective share. Alternatively, business owners often use irrevocable living trusts to move assets outside of the probate estate before they pass away.

Step 4: Children from a Prior Marriage

The most common disputes arise when someone creates a will intending to leave everything to their children from a first marriage. If you die leaving a second spouse and explicitly write 'I leave all my property to my children, and nothing to my current wife,' your spouse does not even need to file a formal renunciation. Under Miss. Code Ann. § 91-5-27, when a will makes no provision for a surviving spouse, the right to take a child's share arises automatically by operation of law. The court will override your complete disinheritance, award the spouse a statutory child's share, and distribute the remainder among your children. As affirmed in Tillman v. Williams, 403 So. 2d 880 (MS Supreme Court 1981), Mississippi maintains a strong public policy against disinheriting a surviving spouse.

How Much Does it Cost in Mississippi?

Proper planning costs a little upfront but saves your estate thousands in litigation costs.

How Long Does the Process Take?

The timeline depends on whether the spouse was provided for in the will. Under Miss. Code Ann. § 91-5-25, if the will makes an unsatisfactory bequest, the surviving spouse must file a written renunciation with the Chancery Court within 90 days after the will is admitted to probate; missing this deadline forfeits the right to elect a statutory share. However, under Miss. Code Ann. § 91-5-27, if the will leaves the spouse nothing at all, no renunciation is required and their right to a child's share is preserved automatically. Overall probate administration typically takes 6 to 12 months or longer to complete asset distribution.

Frequently Asked Questions (FAQ)