What Does Surviving Spouse Inherit If Spouse Dies Without a Will?
Many people are curious about the rights of a husband or wife to a spousal share of their estate. If a person dies without a valid will, that personís property will be distributed according to the laws of intestate succession which are codified in the stateís probate code or other statutes. If you fail to make a will, the amount of property your spouse will inherit from your estate is determined by state law. Therefore, in the absence of a will, the inheritance rights of a surviving spouse will vary depending on where you live.
In some states, when a person dies without a will, the surviving spouse is entitled to inherit the entire estate, unless the decedent has children that are also the children of the surviving spouse, in which case the surviving spouse will inherit part of the decedentís estate and their children or grandchildren will inherit a portion of the estate.If the decedent had children from a prior marriage or relationship, the decedentís estate may be divided among the surviving spouse and the decedentís children. The percentage or dollar amount the surviving spouse will inherit is determined by state law. In some states, when the deceased spouseís estate includes real estate, his children inherit the real estate, subject to a life estate by the surviving spouse.
In some states, when a person dies without a will and is survived by a spouse but no children, the spouse must share the estate with the deceased personís surviving parents or siblings. The surviving spouse is usually entitled to inherit a certain minimum dollar amount or a minimum amount of property from the estate before the parents or siblings inherit anything. For example, state law might provide the surviving spouse shall inherit the first $30,000 of the estate and any remaining property is split between the surviving spouse and the decedentís parents. Unless you want your spouse to be forced to share your personal property, real estate, and other assets with your parents or siblings, execute a will or living trust naming your husband, wife or partner as beneficiary of your estate. For state-specific information about intestate succession and wills, visit our State Laws page.
Surviving Spouseís Right to Elective Share
Even if you make a will or living trust, your surviving spouse usually has the right to inherit certain property in your estate. While you can execute estate planning documents with instructions for distributing your property to beneficiaries of your choice, any estate plan you make is subject to your spouseís right either to an elective share under state law, or community property in community property states. In many states, a married testator cannot disinherit a spouse unless the spouse has agreed in writing to be disinherited, such as in a prenuptial or premarital agreement.If the amount a surviving spouse would inherit as an elective share is greater than the amount the spouse would inherit under the decedentís will, the spouse can renounce the will and exercise the option to take his or her elective share of the estate by filing the required forms and other paperwork in probate court within the required time frames. This is sometimes called a right of election. In many states, the spouseís right to an elective share also applies against non-probate assets. For example, if the deceased spouse held title to property in joint tenancy with a non-spouse, made a gift of property to a non-spouse, or named a non-spouse as beneficiary of IRA's, 401k's, life insurance policies, pay-on-death bank accounts, and other assets, the surviving spouse may be able to take an elective share of such property, depending on the circumstances and applicable state law.
If you want to leave your estate to your children, grandchildren or other heirs instead of your husband or wife, consult an attorney for assistance drafting your will or living trust. If it is not possible for you to hire an attorney, estate planning software or estate planning forms can also be used to make a will and other estate planning documents. See disinherit a spouse for more information. Only an attorney can properly advise you regarding your spouse's right to inherit from your estate under applicable state law.Note, there are exceptions and variations to the general summary of spousal rights under intestate succession laws set forth on this page. The spousal share your husband or wife may be entitled to inherit depends on state law and your unique circumstances.
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