Here’s what we cover:

Disinheritance is the omission of a spouse or children from a will. The principal protection of a surviving spouse against disinheritance is his or her share in the  community property. Each spouse has the power to dispose of only his or her half of the community property, as well as his or her separate property. Arizona law gives either spouse power separately to dispose of community property, except that both must join in disposition of most interests in real property.

Omitted Spouse

If a person executes a will and later marries, Arizona law gives the surviving spouse an intestate share unless:

  1. the will showed that the spouse’s omission was intentional,
  2. the will states that it is to be effective notwithstanding any subsequent marriage, or
  3. the testator (the person who executes a will) made a transfer of property outside the will which can be shown to have been intended as a substitute for provision by will.

This rule does not apply, however, to any property bequeathed to the testator’s child or children who are born prior to the testator’s marriage to the surviving spouse. Because it is common for such an individual to have a will leaving everything to the children from a prior marriage, it is possible that an omitted spouse will also be a disinherited spouse.

Omitted Children

Children born or adopted after execution of a will may be unintentionally omitted from the will, in which case they are entitled to an intestate share. Children receive no intestate share if there is a surviving spouse and the children of the decedent are also the children of the surviving spouse. This means the omitted children will benefit only when:

  1. there is no surviving spouse, or
  2. there is a spouse but the children of the testator are by a prior marriage.

The omission of a child is treated as unintentional except in the following situations:

  1. when the testator’s will shows intent to exclude an after-born child,
  2. where the will, executed when the testator has one or more children, leaves substantially all his estate to his wife, who is the mother of the after-born child, and
  3. where the testator provides for the after-born child by a transfer outside the will, which is intended to be in lieu of a share in the estate.

The above article is an excerpt from Estate Planning in Arizona: What You Need to Know, 2nd Edition (Wheatmark, 2019), by Donald A. Loose, republished with the author’s permission.

Disclaimer: Laws change constantly. Specific legal advice should be obtained regarding any legal matter. The information contained on this website does not constitute legal advice and no attorney-client relationship is created. 

Have any questions about this topic?
We’re ready to listen.

Related Content

7 Reasons to Update Your Estate Plan

Your estate plan is not a “set-and-forget” kind of strategy. There are certain life events and circumstances that warrant your updating this important set of documents.

Why You Need an Estate Plan

Planning for our own death is not something that tends to thrill most of us. It is difficult to face our own mortality.

What is Estate Planning?

What comes to mind when you see the words estate planning?

Informal Probate – Administration of Estates Outside of Court

In many cases, probate is a quick and efficient way to transfer the assets of a person who has died (the “decedent”) to his heirs. About 10,000 probate cases are filed each year in the state of Arizona.

Special Purpose Trusts – 2 Most Common Forms

A trust is a legal entity that is created and holds title to assets during the life of the person who places assets inside the trust

Explore All Articles by Practice Area:
Donald A.
Loose
Attorney at Loose Law Group | (602) 971-4800
Don founded Loose Law Group, P.C. in 1982, and for the past 40 years he has strived to provide his clients with extraordinary service, and achieve for them exceptional results. Don practices in the areas of business law, trial practice, and estate planning. Author of Arizona Laws 101 | A Handbook for Non-Lawyers, and Estate Planning in Arizona