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The Law of Inheritance

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What Is the Law of Inheritance?

Inheritance describes the process and rights a person has to various types of property upon the death of a spouse or relative. Inheritance laws vary from state to state. Usually, the inheritance of property is indicated in the decedent’s will. However, it is possible to inherent property without the existence of a will. Occasionally, a person can claim property regardless of what was written in the person’s will. All of this depends on the inheritance laws in your state.

Do I Need to Be Related to Inherit?

A person who is not related to the decedent may claim an inheritance if it is stated in the person’s will. However, inheritance laws generally do not cover distributions to persons who are not related to the decedent. Instead, as a general matter, when it comes to distributing property the law of inheritance gives priority to close relatives of the decedent.

How Does the Law of Inheritance Affect Surviving Spouses?

The way that the law of inheritance affects a surviving spouse will vary according to whether 1) the decedent left a will, 2) whether the state follows community property rules or common law property rules, and sometimes 3) whether the spouses had divorced.

  • Community Property State: In a community property state, the spouse is generally entitled to half of the marital property acquired during the marriage. However, depending on the language of the will or inheritance laws of the state, they may have no rights to inherit the separate property of their deceased spouse. The deceased spouse may also distribute their half of the community property to a person besides their surviving spouse.
  • Common Law State: In a common law state, the surviving spouse is not necessarily entitled to inherit one half of the property accumulated during marriage. Instead, inheritance of assets is determined by ownership of the property based on title. Generally, the surviving spouse is allowed to claim up to one-third of the deceased spouse’s estate. However, the deceased spouse may have written a will that leaves their spouse less than the amount specified by the state‘s laws. Furthermore, if the surviving spouse had previously agreed in writing to accept less than the statutory amount, they cannot claim the statutory amount.
  • Divorce: In some states, a divorce has the effect of extinguishing any gifts that the spouses may have made to each other through a will. It is advisable to draft a new will after a divorce becomes final, in order to avoid unintentional distributions.

How Does the Law of Inheritance Affect Other Relatives?

The law usually does not automatically grant children the right to inherit property. In some instances, the surviving child or children may be entitled to a portion of their deceased parent’s estate, especially if a spouse did not survive the deceased parent.

Inheritance laws may also address more distant relatives, such as grandparents and grandchildren, aunts and uncles, and nieces, nephews and cousins. However, absent a gift given through a will, these types of relatives usually cannot inherit from the deceased person. If no spouse or children have survived the deceased person, these relatives may be entitled to a portion of the inheritance.

Can I Contest an Inheritance Claim?

If you have a dispute regarding an inheritance left through a will, it may be possible for you to file a complaint in court. However, courts are usually reluctant to alter inheritances if instructions are clearly stated in the deceased person’s will. If the person did not leave a will, it is likely that the inheritance laws of your state contain a provision addressing your inheritance rights.

Disputes between two persons over the same inheritance property can also be heard in court. In such situations, the court may need to examine evidence that would help to clarify the deceased person’s likely intentions regarding the distributions. The laws controlling these disputes differ from state to state.

Do I Need a Lawyer for Issues Involving Inheritance?

If you have any issues regarding inheritance, you should contact a lawyer for advice. An attorney specializing in wills and estates can help answer questions you may have about the laws of your state. They may also provide various services, such as drafting a will or representing you in court.

Photo of page author Matthew Izzi

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 02-18-2014 01:06 PM PST

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