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Inheritance Rights

Your closest family members may have a right to claim a portion of your estate. Some very close family members —meaning a surviving partner and occasionally children or grandchildren—have the right for claiming an inheritance, and in some situations, this can outweigh what was declared in your will. Below is how it works.

Community Property States

The community property states— California, Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Wisconsin, and Washington state—have their own regulations concerning what spouses own and are able to claim. (In Alaska, spouses also can sign an agreement devising community property, and in Tennessee, Kentucky, and South Dakota, spouses can devise a special community property trust.) essentially, each spouse systematically owns half of what either one earned throughout the marriage, unless they have a written agreement that says otherwise. Each spouse can do whatever they like with their own half-share of the community property and with their separate property.

Other States

In all other states, there is no regulation that property obtained throughout marriage is owned by both spouses. But to safeguard spouses from getting disinherited, a lot of these states provide a surviving spouse the right to claim 1/3rd to 1/2 of the deceased spouse’s estate, regardless of what the will says. In some states, the amount the surviving spouse can claim is subject to how long the spouses were married. These conditions start only when the surviving spouse goes to court and claims their portion permitted by law. When a surviving spouse does not oppose to receiving less, the will is going to be respected as written.

Example of How Spousal Share Works

Sophia’s will leaves $90,000 to her 3rd husband, Freddy, and divides the rest of her property, totaling just about $600,000, between her 3 daughters from previous marriages. If Freddy is content with his inheritance, everything is going to go according to Sophia’s plan. But if Freddy wishes for more, he can claim a portion of Sophia’s estate—and get considerably more than $90,000. If he does, Sophia’s three daughters are going to take what’s left. When you do not plan on leaving at least 1/2 of your property to your spouse from your will and haven’t provided for your spouse liberally outside of it, you should speak with a lawyer unless your spouse voluntarily agrees, in writing, to your plan.

The Rights of Ex-Spouses

In most states, getting divorced automatically nullifies gifts made to an ex-spouse through your will. But as a cautionary measure, if you do get divorced, create a new will that nullifies the old one. Then you can just leave your ex-spouse out of your new will.

Children’s Right to Inherit

In general, children do not have an inherent right to inherit from their parents. However, some limited cases allow children to claim a portion of a deceased parent’s property. For example, Florida law prohibits parents from leaving their residence to anyone other than a surviving spouse or minor child. Many states have statutes to prevent unintentional disinheritance, especially when a child is born after a parent makes a will but fails to update it to include the new child. In such cases, the excluded child may have a claim to a significant portion of the parent’s assets. These statutes often apply to grandchildren of a deceased child as well. If you choose to disinherit a child or the child of a deceased child, your will must clearly state your intention. Additionally, if you have more children after creating your will, remember to update it.

 

Source:

  1. Nolo. (2020, August 17). Inheritance rights. www.nolo.com. Retrieved November 1, 2022, from https://www.nolo.com/legal-encyclopedia/inheritance-rights-29607.html

 
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