Q: Does my 401k automatically belong 100% to my surviving spouse - even if I state in my will that my daughter gets part?
I have been told that all of my assets, bank accounts, and 401k account belong to my wife regardless of my directions in my will should I die first. If this is correct then there is no point of having a will if it all goes to her. Is this correct?
A:
Your understanding is not exactly correct. Further, the rules depend on the specific asset and how it is titled. Details are important and no one can adequately address them in a general forum such as this one. However, I believe I can share some general information that may be helpful. Finally, I do encourage you this discuss these matters with your attorney or financial advisor.
1. The 401k may go to your spouse even if you state the contrary in the Will. Retirement plans are governed by the terms of the plan and federal law. For example, an ERISA protected plan must go to your spouse unless your spouse signs a waiver. You can tell whether your plan is an ERISA plan by looking at the beneficiary designation and seeing if it includes a paragraph for a spousal waiver.
2. A bank account or home may go to your spouse if you have included your spouse as a joint owner (with rights of survivorship).
3. If you own assets in your sole name you can certainly leave them in a Will to someone other than your spouse. However, in Alabama a spouse has an "elective share" and can get roughly one-third of your estate. In other words, unless you signed a prenuptial agreement, you cannot fully disinherit a spouse in Alabama. Your spouse is not required to assert her elective share and may allow your Will to stand as written.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
