Any discussion of property, estates, and spouses must include a review of the spousal right of election. A spouse who is legally married at the time of the grantor's death cannot be totally disinherited, regardless of the form of property ownership.

Even if a grantor leaves a surviving spouse nothing in the will, and states a clear intention to disinherit the spouse, the surviving spouse can assert a statutory right to claim a certain share of the estate ("elect against the will"). The amount that the surviving spouse is able to claim by electing against the will varies by state. Typically, this amount is equal to the intestate share that the spouse would have received had the decedent died leaving no will.

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