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Inheritance Law

Most people assume that their close relatives will inherit only what is left to them in the will. However, when it comes to your spouse and descendants this may not be true. There are inheritance laws that regulate their rights to inherit your property. These inheritance laws are complex and have two major consequences.

You can’t disinherit your spouse and, despite what you may have chosen to give them in your will, a surviving spouse is entitled to a certain amount of your estate.
Unless you have specifically written a child or children out of your will they, and sometimes your grandchildren, are entitled to an inheritance.

Inheritance Rights of a Surviving Spouse

How inheritance law affects the distribution of your estate to your spouse depends on the type of property laws in your state. There are two types, community property laws and common law properties.

Community Property States

In a state with community property laws any property acquired by you and/or spouse during your marriage is jointly owned by the “marital community.” Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska allows you and your spouse to sign an agreement creating community property, but it is not mandated by law.

Community property includes:

  • income received from work
  • property bought during the marriage with income from employment
  • any individually owned property that a spouse declares to be jointly owned (i.e. part of the marital community).

Property that is not considered community owned, (i.e. individually owned) includes any:

  • inheritance or gifts that spouse receives
  • property acquired prior to the marriage
  • property the spouses agree to be individually owned

In the community property states, each of you owns half of the community property. While you are alive the properties are jointly managed, but after your death each of have the right to dispose of your share of the community property in whatever way you want. You would do this in your will. 

You can bequeath your half of the community property to someone other than your spouse, but you cannot give away their share of the community property.

However, this may be possible if you had prenuptial agreement that allows this.

Your spouse has the right to manage and dispose of any individually owned property.

Unless otherwise specified in a prenuptial agreement, your spouse controls their share of the community property.

  • While money can be split easily, you should consider that other properties, such as a house or business cannot, and make a plan beforehand.
  • You should discuss this with your spouse and the inheriting co-owner to see what they would prefer.
  • You can then use an amendment/codicil agreed to by all concerned to address this, which will trump the community property inheritance law.

Common Property States

In a state with common property laws, property acquired during marriage is not automatically jointly owned.

Deeded and titled property is considered to be owned by the spouse or spouses named on the document, not necessarily who paid for it.

Property without titles is owned by the spouse who paid for it, if they used their own money and have proof.

Unless otherwise specified as jointly owned, your spouse is not entitled to a one-half interest in any of your other property acquired during the marriage.

All states but those listed above have common property laws.

Even if your surviving spouse does not own any property, they still have protection from complete disinheritance. It does not happen automatically, your spouse must petition the probate court to take advantage of this law. Every common law state has different guidelines.

The specific amount or percentage varies by state, but is typically one-third to one-half.

You may elect to leave less than your state’s mandated inheritance right, but your spouse can still make a claim with the court to inherit that amount.

The will may be carried out according to your wishes if your spouse:

  • agreed in writing to accept less than this amount
  • doesn’t petition the probate court or go to court to claim the mandated amount

Inheritance Rights of a Spouse after Divorce

Remember, inheritance in this case refers to giving something owned solely by you to your ex spouse after your death. The ex spouse will still own all property that is solely theirs and half of any property for which you are co-owners. While it may be fairly simple to protect your individual assets, jointly owned property is another story.

  • This situation with co-ownership might be extremely complex and stressful for your remaining beneficiaries if you do not settle the issues before your death.
  • There are limited options, including selling the properties and splitting the money, one of you buys out the other, or co-ownership with a willing beneficiary.
  • If you have children together and your ex has custody after your death, they will probably retain the house, as long as they can afford it.
  • A financial restraining order can be obtained that prevents you from removing your spouse as beneficiary on any documents, such as life insurance policies or other payable on death accounts, wills, and transfer on death property after filing for divorce. In some states financial restraining orders are automatic.

In general, if you make the effort, you will be able to limit, or possibly even eliminate, how much inheritance your ex gets. How much depends on your state laws. 

Most states automatically revoke bequeaths (gifts in a will) to the ex-spouse once the divorce becomes final, similar to what would happen if they died before you.

  • In some of these states bequeaths to your ex’s relatives (by blood, adoption, or marriage) are also revoked by the divorce, including your stepchildren.
  • In other states, a divorce has no effect on bequeaths to your ex-spouse.
  • For any beneficiaries not routinely revoked you will need to update your will to prevent unintentional gifts to any of them.

If your spouse was a beneficiary, the property would pass to any alternate (contingent) beneficiary you have named.

  • If no alternate beneficiary is named, but your will names a “residuary beneficiary,” they would inherit.
  • If your will doesn’t name a residuary beneficiary, that property is handled as if there were no will, and the court will distribute it to the closest surviving relatives, according to state law.

No matter what your state does, it is best to create a new will after a divorce becomes final to avoid any confusion, especially if you did want to leave them something.

  • A new will revokes all of the old ones.
  • If you die before the divorce is final, the will stands.

Even if you do disinherit your ex-spouse, you may not be off the hook for these properties.

There are many legal ways that could result in your ex getting part of your estate. For example, your ex:

  • is one of the people allowed to go to court and contest your will.
  • may be able to claim some of your pension based on how long you were married

Inheritance Rights of Children

Unlike your spouse, your children do not have a legal right to inherit your property. However, unless you leave everything to your spouse, getting an inheritance is the default if all you do is not include them in your will. 

The law protects children by presuming that omissions, whether intentional or unintentional, are accidental.

This protects children that were born or adopted after your will was created if you do not update your will to include them.

If the disinheritance is intentional, your will should state this explicitly or the default kicks in.

  • Disinherited children are allowed to contest the will to invalidate it and inherit part of your estate under state intestacy statute.
  • The surviving spouse does have the final say on the inheritance of the property, so it is certainly possible for any intentionally omitted children to get inheritance from them.

Inheritance Rights of Grandchildren

Your grandchildren would only have a legal right to inherit your property if their parent who is your child is deceased, and only in some states. As with a child, a grandchild can inherit your property under these restrictions only if it is explicitly stated that they are intentionally being omitted.

General References

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