The Law of Inheritance

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 What Is Estate Planning?

The term “estate” refers to all of a person’s property, including:

  • Personal items;
  • Bank accounts;
  • Real estate;
  • Stocks and securities; and
  • Other such assets.

When a person dies, an estate plan dictates how their property will be managed and distributed or disposed of. Although estate planning is most commonly associated with the wealthy or the elderly, nearly everyone could benefit from having a comprehensive and legally sound estate plan in place.

A clear estate plan can minimize the tax burden placed on the decedent’s loved ones, as well as the need for probate court proceedings. Most people associate the term “estate planning” with wills and trusts. However, estate planning can also be used to address other issues such as:

  • How you wish receive medical treatment, should you become incapacitated;
  • Organ donation wishes;
  • Who is to make legal and financial decisions on your behalf, should you become incapacitated;
  • Who will care for any minor children left behind;
  • Who will take over your business interests; and
  • Your preferred funeral arrangements.

In the absence of a sound and legally binding estate plan, a person’s estate will be distributed according to their state’s specific intestate succession laws. Because these laws generally vary from state to state, they can sometimes result in property distributions that are not in line with the decedent’s wishes. As such, preparing an estate plan is vital to ensuring a person’s wishes are respected when they die.

What Is The Law Of Inheritance?

Once again, state laws vary in terms of inheritance laws. Inheritance laws govern how people receive their share of assets, as well as which relatives have the statutory right to claim an inheritance when they are not expressly included in the will. States are either community property or common law states.

Essentially, this classification determines the way in which estates are divided and which members of the decedent’s family are automatically entitled to a share. It is worth discussing the differences between the two methods of property distribution in order to better understand inheritance laws.

Community property generally refers to property that is acquired by either spouse over the course of their marriage. In terms of what specifically constitutes community property, the following are some of the most common examples:

  • Income received from working;
  • Property bought during the marriage, paid for with income from employment; and
  • Separate property that a singular spouse provides to the marriage community, which would
  • then obligate them to share the property with their spouse.

Community property states include:

  • California;
  • Arizona;
  • Idaho;
  • Nevada;
  • New Mexico;
  • Texas;
  • Washington; and
  • Wisconsin.

Alaska is also considered to be a common property state. However, for a spouse to have the right to inheritance, there must be a written agreement between spouses stating as much.

Generally speaking, American law prohibits completely leaving a spouse out of a will. In community property states, each spouse automatically owns half of everything that the couple earned or acquired over the course of their marriage. What this means is that half will go automatically to the spouse, with the remainder being distributed according to the wishes of the decedent.

If the decedent would like to give less than half to the remaining spouse, there must be a written agreement between the spouses stating such. Or, a prenuptial agreement may be used to state whether the surviving spouse is to receive less than what would automatically be granted.

In common law states, the surviving spouse is not automatically entitled to half of all property acquired during the course of the marriage. Rather, distribution will be determined by who is the titled owner of the property, or which spouse’s income purchased the property in question.

It is important to remember that in common law states, property ownership will generally be determined by the name on the title deed. This remains true regardless of whether the other spouse paid for it. Additionally, common law states protect the surviving spouse from being disinherited from the will.

Do I Need To Be Related To The Decedent In Order To Inherit From Their Estate? Does Divorce Affect Inheritance?

As previously discussed, if the decedent died with a will which provided specific instruction to leave property to a non-relative, the non-relative can inherit that bequest. If a person dies without a will, the person is said to die intestate. What this means is that the person’s estate is disposed of according to state law. Generally speaking, state intestacy laws do not provide for inheritance by non-relatives. However, as state laws vary, it is important to familiarize yourself with your state’s laws regarding the matter.

An inheritance is considered to be separate property. What this means is that the inheritance is owned by one spouse, and one spouse alone. Because of this, the inheritance cannot be divided during a divorce. In community property states, the spouse receiving the inheritance must treat the inheritance as separate property; meaning, they must keep the inherited property or assets separate and apart from marital property. An example of this would be if one spouse inherits a sum of money. They would need to keep the inheritance out of a bank account shared by both spouses.

Additionally, it is possible for divorce to alter the terms of an existing will. Some states have used their inheritance laws to dictate that if a spouse made a specific gift to the other spouse through the will, the gift is extinguished upon divorce. Meaning, the right to receive the gift after the parties divorce each other is revoked by law.

What Else Should I Know About The Law Of Inheritance?

Generally speaking, inheritance law does not require that children inherit property. According to most state intestacy laws, both spouses must be deceased before their children can inherit any part of the estate. Meaning, so long as one spouse is surviving, they will receive the inheritance. However, a spouse can leave a specific inheritance to one or more children in their will.

If an inheritance is being disputed by two people each claiming ownership, the disputing parties will need to file a complaint in probate court or surrogate’s court. The presiding judge will consider each party’s argument, as well as review each party’s evidence. The judge will then make a ruling determining who will inherit the property. It is important to remember that the court will first carefully consider the terms of the decedent’s will. If the terms of the will are clear regarding who inherits, the judge will make their decision according to those terms.

Do I Need An Attorney For Issues Associated With The Law Of Inheritance?

If you are experiencing any sort of issues related to estate planning, wills, and/or your state’s inheritance laws, you should contact an experienced and local inheritance lawyer. To reiterate, much of estate and inheritance law varies from state to state. Because of this fact, it is advised that you work with an experienced and local estate attorney in order to ensure you receive the most relevant legal advice.

An estate attorney can help you create a legally sound and enforceable will according to your state’s inheritance laws. An estate attorney can also help you determine whether there are any other estate planning instruments that would better suit your needs, such as a trust. Whether you are the estate owner or someone who stands to inherit property, an estate lawyer will also be able to represent you in court, as needed, during any legal disputes.


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