While it is uncommon for a spouse to disinherit his or her spouse, it can and does happen. This can be particularly tragic in situations where one spouse earns the bulk of a couple's income (i.e. the husband works outside of the home and the wife stays at home to raise their children). If most or all of the couple's assets are titled in the name of the higher-earning spouse, the other spouse could be at a huge disadvantage should he or she be disinherited.
Hawaii's Elective Share Law Gives a Minimal Level of Protection
Hawaii's elective share statute provides some protection to spouses that are essentially disinherited via a will. I say "essentially" because if a spouse is given only a token or nominal amount in a will and is not provided for with non-probate transfers (i.e. life insurance), practically speaking, the spouse is "essentially" and effectively disinherited.
Disinherited Spouses Can Choose Between Two Options
Disinherited spouses have two options: (1) take whatever little is given via the will or (2) take a percentage of the deceased spouse's augmented estate under Hawaii's elective share law. The augmented estate is comprised of the total value of the deceased spouse's net probate estate, the deceased spouse's non-probate transfers to others, the deceased spouse's non-probate transfers to the surviving spouse, and the surviving spouse's property and non-probate transfers to others.
The Composition of the Augmented Estate is Meant to Prevent a Windfall
The combining of the deceased spouse's property and the surviving spouse's property is meant to prevent the surviving spouse from claiming an elective share if the surviving spouse already owns sufficient property or has been taken cared of through non-probate transfers from the deceased spouse. This purpose is accomplished by requiring that the elective share first be paid from assets that the surviving spouse received via the deceased spouse's probate and non-probate transfers as well as the surviving spouse's own property and non-probate transfers to others.
The Longer a Spouse is Married, the Greater the Share of the Estate
The percentage of the augmented estate that a spouse can claim depends on the amount of time the surviving spouse was married to the deceased spouse:
1-2 years = 3%
2-3 years = 6%
3-4 years = 9%
4-5 years = 12%
5-6 years = 15%
6-7 years = 18%
7-8 years = 21%
8-9 years = 24%
9-10 years = 27%
10-11 years = 30%
11-12 years = 34%
12-13 years = 38%
13-14 years = 42%
14-15 years = 46%
15+ years = 50%
The Bottom Line: Hawaii's Elective Share Law is Just a Back-Up
Hawaii's elective share law acts as a back-up plan. It gives a disinherited spouse the option to take whatever is provided in the will or take under the elective share law. The elective share law provides only a minimum amount. If a spouse desires a larger share of the estate, then it is important to be involved in estate planning and know what is provided in the other spouse's will. This can prevent surprises and can ensure that no one becomes disinherited in the first place.
This article is a service of the Law Office of Keoni Souza, LLC, an estate planning law firm in Honolulu, Hawaii. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by contacting our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.
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