Can I disinherit my spouse under federal estate tax rules?

What the Law Says

Federal estate tax law does not allow complete disinheritance of a spouse for tax purposes — instead, it provides a powerful incentive to leave assets to a surviving spouse through the marital deduction. This deduction reduces the taxable estate by the value of qualifying transfers to the spouse.

Under 26 U.S.C. § 2056, the value of property passing from a decedent to their surviving spouse is deductible from the gross estate — effectively allowing an unlimited transfer free of federal estate tax, provided certain conditions are met.

The deduction applies only if the property passes 'outright' or in a qualifying trust (e.g., a QTIP trust), and the spouse is a U.S. citizen. Special rules apply for non-citizen spouses, requiring use of a Qualified Domestic Trust (QDOT).

Importantly, § 2056 does not force you to leave anything to your spouse — but if you attempt to disinherit them entirely, you forfeit this deduction, potentially triggering large estate taxes that could have been avoided.

Statutory Text

For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse...

— 26 U.S.C. § 2056(a) — Marital deduction

Sources