If you’re planning on leaving your spouse less than half of your property, speak with a lawyer for assistance. If you’re planning on leaving your spouse or registered domestic partner little to no property, you might run into some legal blockades. Each common law property state safeguards surviving spouses or partners from being totally disinherited—and most ascertain that a spouse has a right of receiving a significant portion of a departed spouse’s property. Community property states provide a different type of safeguarding.
Spousal Rights in Common Law States: Understanding Options
Choice Between “Taking Under the Will” and “Taking Against the Will”
In common law states, surviving spouses or domestic partners face a crucial decision: accepting the provisions of the will (“taking under the will”) or rejecting the gift to claim the minimum portion mandated by state law (“taking against the will”).
Florida’s Example: Home Inheritance
Florida law, as an example, grants surviving spouses the right to inherit their deceased spouse’s home, showcasing the variation in regulations safeguarding spouses and domestic partners.
Differing Entitlements Across States
Spousal entitlements differ among common law property states. In some, spouses may be entitled to 1/3rd of the property outlined in the will, while in others, it could be 1/2. The specific minimum portion may be influenced by factors such as the existence of minor children and other means of provision, like trusts.
Example Scenario: Impact on Inheritance
Consider James’ will, leaving $60,000 to his second wife, April, and the rest to his daughters from a previous marriage. April, dissatisfied with the $60,000, can choose to receive her legal share, altering the distribution significantly and affecting the daughters’ inheritance.
Options and Relinquishment of Rights
Spouses content with their will-provided portion can leave it unchanged. Alternatively, spouses or partners can voluntarily relinquish their inheritance rights by signing a release document, an option available in almost every state. Seeking legal advice is advisable for those considering such arrangements.
Understanding these options empowers individuals in common law states to make informed decisions regarding their inheritance rights.
Spousal Safeguarding in Community Property States
Nolo. (2016, November 16). Your Spouse’s right to inherit from you. www.nolo.com. Retrieved July 13, 2022, from https://www.nolo.com/technical-support-main/online-will-spouses-right-inherit.html
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