Your Spouse's Right to Inherit From You

Your Spouse’s Right to Inherit From You

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.

Family Allotments

In many states, safeguards exist for family members, ensuring temporary protection and funds after the death of a spouse. Common law states determine a surviving spouse’s entitlement based on various factors, including assets received through the will, joint tenancy, or a living trust. This collective sum, termed the augmented estate, aims to provide a comprehensive share for the surviving spouse.

 

Spousal Safeguarding in Community Property States

In some community property states, living spouses each own 50% of property and revenue acquired during marriage. Limited exceptions allow spouses to claim a portion of the deceased spouse’s separate or community property, preventing oversight or intentional deprivation.

Source:

  1. 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

Family Law Scottsdale & Phoenix

When a case demands litigation, you’ll have the benefit of 19 years of litigation experience in California and Arizona. But when a case demands collaborative law or mediation, you’ll know every option.

Moshier Law services all of Phoenix and Scottsdale, Arizona. Jennifer and her team of professionals seek to resolve Family Law cases efficiently with your goals in mind. Call us today! 480-999-0800

Recent Posts

Categories

Resources

Finding the right mediator can be difficult.

5/5

Divorce and Family Law

When a case demands litigation, you’ll have the benefit of 19 years of litigation experience in California and Arizona. But when a case demands collaborative law, or mediation, we can meaningfully describe why collaborative law or mediation may or may not be your best option.

Moshier Law services all of Phoenix and Scottsdale, Arizona. Jennifer and her team of professionals seek to resolve Family Law cases efficiently with your goals in mind.

Jennifer Moshier, Scottsdale Divorce Lawyer

Trail Potter  –  Divorce  Lawyer

Moshier Law - Phoenix Divorce, DCS and CPS, Custody, Estate Planning, Probate, and Adoption Lawyers