Does Surviving Parent Have to Honor Deceased Parentís Will?
If one of your parents has died leaving a surviving spouse, it is not uncommon to have questions about your deceased parentís will. One of the most common questions is whether the surviving spouse has to honor your deceased parentís last will and testament as it relates to your inheritance.
For example, suppose a father made a will bequeathing his entire 5 million dollar estate to his wife and in the event his wife does not survive him, leaving his entire estate to his children in equal parts. After the father passes away, his surviving spouse inherits the entire 5 million dollar estate. In these circumstances, the children typically assume they will inherit whatever portion of their fatherís estate remains after their mother or stepmother dies. However, the children may inherit nothing, despite the provisions of their fatherís will.
The key point for the children in this situation to understand is that while the fatherís will expressed an intention that his children would inherit his estate if his wife did not survive him, the wife did survive him and therefore inherits the entire estate, unless an exception applies. In this case, the surviving spouse has the right to do what she wishes with the inheritance, even if that means disinheriting the deceased spouseís children. The surviving spouse may also spend the assets in the estate frivolously, leaving nothing for the deceased spouse's children to inherit.In the case described in this article, the surviving spouse would typically not be required to leave any of the assets inherited from the deceased spouse to the deceased spouse's children. However, estate planning laws vary from state to state and there are exceptions. Some of the exceptions include joint wills and life estates. To find estate planning laws by state, go to state laws.
When Parents Use Inheritance to Control Heirs
Many adult children have to face the difficult challenge of dealing with a parent that uses an inheritance to manipulate or hurt their child or stepchild. If you are in this situation, you may be conflicted about whether to pursue the inheritance you know was intended for you or walk away from an abusive situation. One step you can take is to ask to see your surviving parent's estate planning documents, such as a will, estate planning trust, and financial power of attorney. These documents should provide more information about how your parent intends to distribute his or her estate. For tips, see our section for heirs and beneficiaries.
Legitimate Heirs Left Without Inheritance
Many adult children are surprised to learn how extensive the inheritance rights of the surviving spouse are in the American legal system today. This may seem at odds with the expectation of children that view themselves as the legitimate heirs to the estates of their parents.
See spousal share. While it is more likely for children to receive no inheritance from a deceased parent's estate if their parent had remarried and left his or her estate to a stepparent, adult children can also be effectively disinherited when their own parent inherits the deceased parent's estate. See
disinherited by parent.When the surviving spouse inherits their deceased spouse's estate, the deceased spouse's children may not receive an inheritance when the surviving spouse dies for a number of reasons, including:1. the surviving spouse spends all the assets in the estate.2. the surviving spouse gifts the assets in the estate to individuals other than the deceased spouse's children. See inheritance theft.3. the surviving spouse makes an estate plan leaving his or her estate to charity.4. the surviving spouse makes an estate plan disinheriting the deceased spouse's children and instead leaving his or her estate to other beneficiaries. See
disinherited by parent.5. the debts owed by the estate leave nothing for the beneficiaries to inherit.
When a husband and wife make joint wills, the surviving spouse is typically prevented from changing his or her will after the death of the first deceased spouse. However, joint wills are not recommended and are rare. See types of wills.If you believe your deceased parent made a joint will leaving an inheritance to you and the surviving spouse does not intend to honor the joint wills, consult an estate planning attorney.
Sometimes married individuals make a will or living trust that leaves their surviving spouse only a life estate, with the remainder to his or her children. A life estate entitles the surviving spouse to use and occupy the property for his or her lifetime. For example, if the will leaves a life estate in a house to the surviving spouse with the remainder to the deceased spouse's children, the spouse may use and occupy the house during the surviving spouse's lifetime, but the children receive the house after the death of the surviving spouse.
Inheritance Laws Vary by State
The laws on inheritance, intestate succession, wills, trusts, estate planning, and probate vary from state to state. If you believe you are entitled to an inheritance based on the provisions of your deceased parent's will, consult an estate planning or probate lawyer licensed in the state in which your parent was domiciled. See
finding an attorney.