Inheritance Law and Your Rights

This article explains the inheritance rights of family members and loved ones: surviving spouses, ex-spouses, children, and grandchildren. State laws vary. Talk with an estate planning attorney in your state to understand how state inheritance laws may affect your estate plan. This is especially important if you choose to exclude a family member from your will or trust.

Inheritance Rights of a Surviving Spouse

A spouse's rights to inherit their deceased spouse's estate depend on what was written in the will, whether they live in a “community property" or “common-law" state, and whether they are willing to press for their rights in probate court.

Inheritance Law in Community Property States

The following are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

In Alaska, spouses can enter into a community property arrangement by written agreement. In Kentucky, South Dakota, and Tennessee, couples can choose to transfer assets to a community property trust. In California, Nevada, and Washington, registered domestic partners also have inheritance rights under community property law.

What Is Community Property?

In a community property state, assets acquired by either spouse during the marriage are considered to be jointly owned by both spouses. Each spouse owns a 50% interest in the property. Marital assets include income received by either party from work, bank accounts opened during the marriage, proceeds from life insurance policies, and property bought during the marriage with income from employment. It may even include separate property that a spouse brought into the marriage if it was converted for use by both spouses.

Spouses have a right to dispose of their share of community property in whatever way they desire (unless a provision in a prenuptial agreement states otherwise). For example, a deceased spouse can leave half of the family home to a different beneficiary other than the surviving spouse. However, the deceased spouse can't give away the other spouse's share or right to use community property.

What Is Not Community Property?

Even in a community property state, a spouse may own some property as separate property if:

• They acquired it as an inheritance or a gift and kept it separate
• They acquired it prior to marriage and did not convert it to joint use
• The spouses agreed to keep some real property as separate property

A spouse has the sole right to dispose of their separate property. A deceased spouse can distribute both their separate property and their share of community property in a will.

Inheritance Law in Common-Law States

All states that are not community property states are common-law states.

In a common-law state, ownership is determined by whose name is on the title (for real estate or a car, for example). If only one spouse's name is on the deed of a home, that spouse owns the home, even if the other spouse actually paid for it.

If the title doesn't apply to the type of personal property in question, ownership is determined by who purchased the property.

A spouse is not automatically entitled to a 50% interest in property acquired during the marriage. Does this mean a surviving spouse has no inheritance rights? Not necessarily.

Most common-law states protect a surviving spouse from complete disinheritance with an inheritance law that allows them to claim one-third to one-half of the decedent's property. In some states, the amount a spouse can inherit increases with the number of years of the marriage.

A spouse can choose to leave less than their state's inheritance law allows, but the surviving spouse can go to court to claim they should receive a higher amount. If the surviving spouse agrees to accept a lesser amount or never challenges the inheritance in court, then the terms of the will apply.

Transferring Home Ownership Outside of a Will or Trust

When it comes to transferring ownership of a home or real estate after death, this can also be accomplished with property titles, such as joint tenancy or tenants in common.

In a joint tenancy with a right of survivorship, when one owner dies, the surviving owner receives 100% ownership of the property. They need only file a death certificate and an affidavit of surviving joint tenant with their county clerk.

Changing the deed to reflect joint tenancy can be done at any time while the parties are both alive. The shared tenant does not have to be a spouse. It can be a child, a sibling, or an unrelated party.

As tenants in common, both parties own the property, but neither of them has a right to the other person's share of the property after death. The deceased person's share of the property is distributed in accordance with the directions of their will or trust. If a party transfers their share of the property to a living trust during their lifetime, the probate process can be avoided altogether. If there is no will or trust, the share of the property will go to the party's heirs according to state inheritance law.

Let's say, for example, that an unmarried couple owns a home as tenants in common. One partner dies. The remaining partner continues to own one-half of the property. The deceased partner's children may then have a right to inherit the other half-share of the property. The new heirs will need to gain title to the property through the probate process.

It is important to keep in mind that, regardless of how a decedent's property is transferred, the beneficiary will have to pay inheritance tax on the property.

Inheritance Rights of a Spouse After Divorce

In most states, once a divorce is finalized, the bequests made in the will to the ex-spouse prior to the divorce are automatically revoked. In some states, divorce has no effect on bequests to an ex-spouse. If you want to ensure that your ex-spouse does — or does not — inherit, it's best to draft a new will after the divorce becomes final.

Inheritance Rights of Adult and Minor Children

Unlike a spouse, an adult child generally has no legally protected right to inherit a deceased parent's property under state intestate succession laws. Some states, like Florida, do offer some protection to minor children.

Most states protect adult and minor children from being unintentionally omitted from a will. It's easy to see how that can happen. Parents write a will after the birth of their first child but then forget to revise their will after they have a second child. They didn't mean to disinherit the younger child; they simply forgot.

The law presumes that such omissions are accidental when the birth of a child occurs after the creation of the will. If this is the case, the omitted child may inherit some portion of the decedent's estate.

If the omission was intentional, and the parent(s) wanted to disinherit a child, this should be specifically stated in the estate planning documents.

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, the grandchild may have a right to inherit. Of course, the will may contain an express statement disinheriting the grandchild.

Confused About Inheritance Rights? An Estate Planning Lawyer Can Help

If you have specific questions that haven't been addressed in this article, or if you are concerned that your will may be challenged in court, get legal advice from an experienced estate planning attorney. Find a local estate planning attorney through FindLaw.