If an individual is married, they are likely concerned about the inheritance rights of their spouse when they pass away. In most situations, the surviving spouse is first in line to inherit the deceased spouse’s property, whether it is distributed under intestate succession or a will.
If an individual passes away without a will, it is referred to as intestacy. Every state has its own laws governing intestacy.
It is important to note that there are two categories of intestacy, total and partial. Total intestacy occurs when an individual passes away with no will.
Partial intestacy occurs when an individual had a will but it did not correctly dispose of all of the property belonging to them. In general, intestacy laws provide that the decedent’s spouse will have first rights to property distribution and inheritance.
After the spouse, the majority of states will follow the blood line, such as children and adopted children. It is important to note that step-children would not inherit, as they are not considered descendants.
Typically, when an individual who is married drafts their will, they leave everything to their surviving spouse. If they wish, they may also leave property to children, other relatives, friends, or charities.
Are There Automatic Inheritance Rights for Spouses?
The rules of inheritance succession vary by state. Although the inheritance rights of a spouse may not be considered automatic, they are typically the first in line to inherit their deceased spouse’s property.
The majority of states follow the Uniform Probate Code, or UPC. This is a body of model laws, not actual laws, that address issues associated with wills, trusts, and estates.
The UPC was intended to streamline the probate process, which makes estate and probate administration more simple and less expensive. Many states have adopted these laws to help standardize estate administration across state lines.
Under the UPC, the close relatives are always first in the order of inheritance. Generally, the surviving spouse will be first in line to inherit property.
How much each individual receives through inheritance succession will depend on the probate laws of the state, as the percentages may vary. If the decedent had a surviving spouse and children, they will likely inherit the entire estate.
Under the UPC, estates are generally apportioned as follows:
- Surviving spouse: The spouse will receive the entire estate or the majority of the estate;
- This portion will be reduced, however, if there are surviving children;
- Surviving children: The children of the decedent may receive the entire estate if there is not a surviving spouse;
- Surviving parents: If there is not a surviving spouse or children, the parents of the decedent may inherit the entirety of the estate; and
- Other relatives: The decedent’s siblings will inherit the estate if there are no other eligible parties;
- The line of succession will then be followed until there are relatives who are eligible to inherit.
It is also important to note that states may differ regarding how marital property is classified. Some states are community property and some are common law states.
This classification determines the way in which estates are divided and who in the decedent’s family is automatically entitled to a share. Community property is property that is acquired by either of the spouses over the course of their marriage.
Community property states include:
- California;
- Arizona;
- Idaho;
- Nevada;
- New Mexico;
- Texas;
- Washington; and
- Wisconsin.
In common law states, the surviving spouse will not be automatically entitled to half of all of the property that was acquired during the course of the marriage. Instead, property distribution will be determined by who is the titled owner of the property or which spouse’s income purchased the property.
Common laws states also typically protect a surviving spouse from disinheritance in a will. This means that if an individual wants to ensure that their spouse inherits their entire estate when they pass and it is not divided between their spouse and children, they should draft a will to ensure their wishes are outlined and carried out when they pass away.
What Is the Elective Share Option?
The elective share is the legal term for the portion of a deceased individual’s inheritance that their surviving spouse may inherit. An elective share may be provided to the surviving spouse in lieu of the bequest made to them in a will.
The states vary regarding the size of an elective share, but it is typically between one-third and one-half of the decedent’s estate. There are several variables that must be taken into account when calculating the elective share’s value, including:
- Many states require that the spouses were married for a specific period of time;
- Some states modify the ratio of inheritance based on the duration of the marriage;
- In some places, the ratio is changed if there are still any minor children; and
- In some states, the elective portion will be reduced if the surviving spouse is affluent independently.
If the spouses had been living apart for a predetermined time prior to the deceased spouse’s death, several states do not let the surviving spouse claim the elective share. This means that a surviving spouse may only inherit through a will if the will left them a portion of the estate that is equal to or more than the elective share.
In some states, the elective share can be avoided by:
- Using certain trust types to hold the assets, preventing them from being subject to the elective share; and
- While the spouses are both still alive, they sign a document stating that they would not be collecting the elective share.
An individual should consult with a lawyer in their state to determine what rules apply and whether they need to take action to prevent their spouse from receiving the elective share when they pass.
How Does a Last Will and Testament Affect the Inheritance Rights of Spouses?
A last will and testament, or a will, is an estate planning document that allows an individual, called a testator, to outline how they want their property distributed when they pass away. This can include personal property and real property.
A will can affect the inheritance rights of the decedent’s spouse as they are able to provide instructions on exactly what property they want their spouse to inherit. An individual can amend or change their will at any time before they pass away.
In general, wills can be changed in two different ways, including:
- Codicils: A codicil is essentially a written amendment or alteration to an existing will; or
- New will: This involves revoking an existing will and creating a new will;
- When creating a new will it is important to date the wills in order to help the court determine which came later in time and controls.
An individual does not have to have a specific reason to change their will, they are in total control of its contents. It is important for an individual to update their will following any major life events, such as births, divorces, re-marriages, or any other events that may affect who should inherit property.
Are There Any Other Important Legal Considerations?
If an individual has a legally valid and established estate plan, it will help ensure that their property is distributed according to their wishes. An estate plan can help an individual avoid dying intestate and the issues that may be associated with that.
There are numerous factors that an individual should consider when they are establishing their estate plan, including:
- Their state’s specific estate laws;
- Their life stage, as well as their family stage;
- Their financial assets; and
- Their long-term goals.
As an individual’s life evolves over time, they will likely need to modify their estate plan, as discussed above. In addition, if an individual moves to a different state, they will need to ensure their plan meets the legal requirements in the new state.
If they do not, their will or estate plan may be rendered invalid. Common examples of legal issues that may be associated with invalid estate plans include, but may not be limited to:
- Failing to list all of the decedent’s property in their will or trust documents;
- Failure to meet the state’s legal requirements, for example, having the will properly witnessed and executed;
- Listing invalid beneficiaries on the decedent’s pension, benefits, life insurance policies, or other similar items;
- Naming an incapable or inappropriate executor; and
- Failing to account for potential contingencies and emergencies, for example, prolonged illnesses or the death of a beneficiary.
If an individual’s will or estate planning documents are deemed invalid, their estate may be subject to expensive and lengthy probate court proceedings. In addition, their assets will likely not be distributed according to their wishes but, instead, according to the intestacy laws of the state.
Should I Contact a Lawyer?
As discussed above, having an estate plan is the best way for you to ensure that your property is distributed as you wish upon your passing. If you are married, this will most likely include ensuring that your spouse and family members are cared for when you are gone.
It is essential to consult with a family lawyer in your state. Most estate planning issues are determined by the laws in your state and your attorney can ensure that you meet all of the requirements to make your estate plan valid.
Your attorney can also help you address any concerns, organize your estate, and determine the best estate planning tools to fit your specific needs.
