Inheritance Law and Your Rights

The rights of a deceased person’s survivors to inherit a property are governed by the inheritance law. The inheritance law varies from state to state, and will determine how much a spouse is entitled despite what is stated on your will. The rights of the spouse to inherit depend on whether the state recognizes community property or common law in their approach in dealing with a spouse’s inheritance. Children also have the right to claim inheritance when a parent dies. Sometimes even grandchildren may inherit when the grandparent dies.

Inheritance Rights of a Surviving Spouse

Different states follow either community property or common law in determining the distribution of the deceased person’s estate.

The community property states are: Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska (although in Alaska, there must be a written agreement between the spouses). The remaining states follow common law.

Inheritance Law in Community Property States

Generally, a property acquired by the spouses during marriage is community property. Included among the community property are income from work, property bought from income during marriage, and the separate property that a spouse gives to the community. The spouse gets to keep a separate interest in a property through the following:

  • Inheritance or a gift
  • Acquisition of the property prior to the marriage
  • An agreement between the spouses to keep the property separate from the marriage community

Each spouse owns one-half of the interest to a marital property in these states and they have the right to dispose of their share in any way they want. For example, a spouse can give his half of the community property upon his death to somebody other than the surviving spouse. A prenuptial agreement can also change the rights of the spouses to distribute the property.

A spouse has the sole right to dispose of their own separate property. A spouse can distribute both their separate property and their share of the community property upon their death through a will.

Inheritance Law in Common Law States

In contrast with community property states, both spouses do not necessarily own a property acquired during marriage. Ownership is established by whose name is on the title or by

Unlike a surviving spouse in a community property state, a spouse is not entitled to a one-half interest in all property acquired during the marriage. In a common law state, both spouses do not necessarily own the property acquired during marriage. Ownership is determined by the name on the title or by determining which spouses’ income purchased the property if a title is irrelevant. If for example the husband paid for a house and only the wife’s name is on the title, then that house is owned by the wife.

But in common law states, a surviving spouse has a protection from complete disinheritance. Although their guidelines vary in common law states, most of their inheritance law allows the surviving spouse to have a claim on one-third of the deceased person’s property. If the deceased spouse left less than that to the surviving spouse in their will, the surviving spouse may go to court to claim one-third of the property.

Inheritance Rights of a Spouse after Divorce

Many states automatically revoke the gifts made in a will to an ex-spouse after the divorce becomes final, while in others, the divorce doesn’t affect what is stated in a will. That’s why it is better to create a new will after a divorce to change what is written on it and avoid unintentionally gifting an ex-spouse.

Inheritance Rights of Children

Unfortunately for children, they generally have no legally-protected rights to inherit from a deceased parent’s property and the law does not protect them when they are unintentionally omitted from a will. The law presumes that such omissions are accidental. The child’s right to inherit depends on whether the decedent left a surviving spouse. If in case there is no surviving spouse, then the child omitted from the will may inherit a portion of the deceased person’s estate.

But if the child was intentionally omitted from the will, it should be expressed as so in the will.

Inheritance Rights of Grandchildren

In general, grandchildren do not have a legal right to inherit property from a grandparent. In some states, if the parent of the grandchild is deceased, however, the grandchild may have a statutory right to inherit property from a grandparent if the will does not contain an express statement of the intent to disinherit the grandchild.

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