Inheritance law is the body of law that dictates who receives property when someone dies. Inheritance law controls which deceased person’s survivors (the friends and relatives they left behind) inherit the deceased person’s (decedent’s) property. Different states have different inheritance laws.

Do I Have to be Related to a Deceased Person to Inherit?

If the deceased person died with a will, and left a specific bequest (instruction to leave property to someone) to a non-relative, the non-relative can inherit that bequest. If a person dies without a will, the person dies intestate. This means that the person’s estate (property) is disposed of (distributed to others) according to state law. Generally, state intestacy laws do not provide for inheritance by non-relatives.

How Does Inheritance Law Affect A Spouse Who Survives?

Surviving spouses receive a share of the decedent’s estate. In cases of intestacy, how much that is received, depends upon state law. The amount received depends upon whether the state uses common law inheritance rules, or community property inheritance rules. Both sets of rules are designed to ensure that a surviving spouse receives some amount of inheritance.

What are Common Law Inheritance Rule States?

In states with common law inheritance rules, inheritance is “ownership-based.” This means that whomever held title, legally owned the property. Who owns property is determined by the name on the title document. In some instances, the deceased spouse may have owned all of the property. Most common law states have inheritance laws that prohibit the surviving spouse from receiving nothing. In such states, the surviving spouse may claim anywhere from one quarter (¼) up to one third (⅓) of the property of the decedent. The legal term for what the spouse is claiming is an “elective share.”

A deceased spouse with a will can choose to leave less the required elective share amount. However, most states prohibit disinheritance by a will. To disinherit, the spouse must agree, in either an antenuptial (prenuptial) agreement or postnuptial agreement to receive nothing. The spouse’s agreement must be voluntary and not coerced.

What are Community Property Inheritance Rule States?

In community property rule states, the law requires that the surviving spouse be given one half of the marital property. By definition, in community property states, marital property is owned by each spouse equally. This equal ownership begins when the couple gets married. Marital property includes income, real and personal property, as well as debts accrued while the couple was married.

If a couple divorces, or physically separates with no intent of remaining married, the community property “time period” is deemed legally over. This means that any income or debts earned or incurred by either spouse are their own separate property.

In a community property state, a spouse may include a provision in their will about the surviving spouse’s inheritance rights. The provision may state that the surviving spouse cannot inherit the separate property. Most community property states also allow a deceased spouse to give up to one half (½) of their community property to someone other than the spouse.

Does Divorce Affect Inheritance?

An inheritance is considered to be separate property. This means that it is owned by one spouse alone. Therefore, the inheritance cannot be “divided” during a divorce. In community property states, the spouse given the inheritance must treat the inheritance as separate. To treat the inheritance means to keep it separate and apart from marital property, such as joint bank accounts.

Divorce may also alter the terms of a will. Under some states’ laws, if a spouse made a specific gift to the other spouse through the will, the gift is “extinguished” upon divorce. This means that the right to receive the gift after the parties are divorced, is revoked by law.

Does Inheritance Law Affect Other Relatives?

Generally, inheritance law does not require that children inherit property. Under most state intestacy laws, both spouses must be deceased before children can inherit. A spouse can leave a specific bequest to one or more children in a will. If the will is valid, the child will receive the bequest.

Can I Dispute a Claim of Inheritance?

If an inheritance is in dispute, with two people each claiming ownership, the disputing parties may file a complaint in probate court or surrogate’s court. The judge will listen to each party’s argument and review each party’s evidence. The judge will then make a ruling as to who inherits the property.

When reviewing each party’s claim, the court will look carefully at the terms of the deceased person’s will. If the terms of the will are clear as to who inherits, the judge will give effect to those terms.

Do I Need the Help of a Lawyer With Issues Related to Inheritance?

If you need advice regarding an inheritance situation, you should contact an estate lawyer. An experienced estate lawyer near you can evaluate your situation, advise you as to your rights and options, and represent you in court.