You do not have to include your spouse in your will, but it doesn’t necessarily mean that your spouse cannot get anything from your estate. If you leave your spouse out of your will, your spouse may be able to elect against the will. Elective share provisions are part of our law that attempts to prevent the disinheritance of a spouse. This means that your spouse may be able to collect a percentage of your estate as set by law. The amount the spouse will collect is called the elective share amount.
The elective share amount depends on the number of years that you have been married. The highest percentage your spouse can collect from your estate is 50%, which is the share allotted after 15 years of marriage.
The law is designed to protect surviving spouses. Thus, if you choose to leave your spouse out of your will, your spouse may be entitled to a share of your estate anyway. If this happens, it could leave others in your will with less than you had intended.
For more information, see: W. Va. Code §§ 42-3-1 to -3) (2015); Kidwell v. Kidwell, 189 W. Va. 307, 431 S.E.2d 346 (1993); Mongold v. Mayle, 192 W. Va. 353, 452 S.E.2d 444 (1994). 80 Am. Jur. 2d Wills §1401, Components of elective share; expenses; 97 C.J.S. Wills §2146.