When a person dies without leaving a will to clarify how they wish for their estate to be distributed, it is referred to as intestacy. The person is said to have died intestate, or, without a will. Each state has its own laws regarding distribution of the deceased person’s property when there is no valid will to instruct distribution.
Additionally, these state laws distinguish between total intestacy and partial intestacy. Total intestacy occurs when the person dies with no valid will. Partial intestacy occurs when the will does not dispose of all of the property the decedent owns. Intestacy in general will be further discussed later on.
If your spouse dies intestate, their half share in property will pass to the surviving spouse. Furthermore, if there are no other parties to take the deceased spouse’s property, all of it goes to the surviving spouse. When there is someone else to pass along the property to, such as an heir, the surviving spouse will get half of the deceased’s spouse’s property while the other half will go to the heir.
The share that the surviving spouse gets will decrease according to the number of heirs. An example of this would be if there are two heirs and a surviving spouse. Each party will receive one-third of the decedent’s property.
What Is The Widow’s Will Election?
If your deceased spouse attempts to leave their share of the property to someone else through their will, as the widow or widower, you have legal options. The Widow’s Will Election essentially refers to the choice that you as the widow(er) will make between accepting what your spouse left in their will, or what you will receive according to the laws of succession.
An example of this would be how the state in which the spouse died may maintain laws which state that the surviving spouse is allowed one half of the estate according to the law of succession. This would mean that one half would go to the surviving children if there was no will to dictate otherwise. However, the decedent did leave a will which states that the surviving spouse should only receive a quarter of their estate. According to the widow’s will election, the widow(er) may elect to receive half.
As the surviving spouse, you have the right to assert your community property rights to a particular asset, or your rights under the will. Another way of putting this would be that by asserting your right, the court may overlook your deceased spouse’s device and award you with the property. Alternatively, if the will provides the surviving spouse with more property, you have the right to choose to take property under the will instead.
To reiterate in simple terms, the Widow’s Election means that you can either elect to receive whatever your property rights allow you to receive at that time according to your state’s laws, or you can decide to choose to receive whatever property is left to you in your spouse’s will.
What Happens If My Spouse Puts Some Of the Estate Into A Trust, And I Am Not Named As the Beneficiary?
In the past, trusts were considered to be beyond the reach of surviving spouses. Recently, most states have changed that rule in order to permit surviving spouses to take from trusts that were created by the other spouse in a widow election. The only exception to this is if the trust was actually created by a third party. This exception is intended to protect any third parties who did not ever intend for the surviving spouse to take from the trust.
An example of this would be how a parent might leave a trust for their daughter. If the specified daughter dies, the daughter’s husband cannot take from the trust. This would be because the parent intended the trust solely for their daughter, and not for their son-in-law.
It is not uncommon for some parties to try to take advantage of this third party exception. For this reason, there are a variety of tests that courts may use in order to determine whether a party is abusing the third party rule.
An example of this would be how a spouse cannot have their attorney create a trust, and then assert that the trust is beyond the other spouse’s reach due to the fact that a third party technically created the trust. Courts would generally determine that the deceased spouse intended to defraud the system, and as such, the third party rule would not be enforceable under these specific circumstances.
Will My Spouse Receive Everything If I Die Without a Will? How Much Will Each Person Inherit Under Intestacy?
As previously mentioned, intestacy plays a large role in determining how property is distributed to surviving spouses. The amount that a surviving spouse will inherit largely depends on several factors. First and foremost of these factors would be your state’s laws, meaning whether you live in a community property state. Another largely determining factor would be which of your other relatives survive you.
If the decedent leaves no surviving children, then the spouse could get everything left behind by the decedent. Or, they may be required to share some of the property with the decedent’s parents. If the decedent did leave surviving children, the spouse will often share with them according to the distribution scheme which was previously discussed.
Some states will give the surviving spouse a specific amount or percentage of the property, and divide the rest between the decedent’s surviving children. Other states have determined that the spouse is to receive everything and act as a conduit, leaving the children anything that remains when the surviving spouse dies themselves.
The per capita approach to distributing property, which is followed by some states but not all, counts all of the surviving heirs of the decedent and gives each heir an equal share of the decedent’s property or estate. What this means is that the more heirs a person has, the smaller portion each heir would receive.
The per stirpes approach, which is followed by many other states, divides the estate property according to how many children survive the decedent. If the decedent left three children, each of them would take an equal share of one-third. However, if one of those children is no longer alive at the time of distribution, then the one-third share intended for that child would be shared equally by their own heirs.
Do I Need An Attorney For Issues Associated With the Widow’s Will Election?
If you have any questions regarding the Widow’s Will Election, or if you are experiencing issues associated with the topic, you should consult with an experienced and local estate attorney. A local estate lawyer will be best suited to helping you understand your state’s laws regarding estate distribution, intestacy, and the Widow’s Will Election.
An attorney can also help you determine what your best option is in terms of legal action, and how best to proceed. Further, should any issues arise requiring legal representation, your attorney will also be able to represent you in court, as needed.
An estate attorney can also provide estate administration assistance prior to anyone’s death. They can help create estate planning documents that provide for as many contingencies as possible, and can provide legal assistance in updating or modifying these documents as needed.