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:
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Property that is not considered community owned, (i.e. individually owned) includes any:
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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.
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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:
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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.
If your spouse was a beneficiary, the property would pass to any alternate (contingent) beneficiary you have named.
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.
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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:
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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.
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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
- Burrell D. Going Through A Divorce? Don’t Change Your Beneficiaries… Yet. Money Wisdom Blog website. Posted: March 23, 2018. Accessed: January 22, 2020.
- Can You Disinherit Your Spouse After Divorce? Soto Lawgroup website. Posted: June 26, 2019. Accessed: October 11, 2019.
- Divorce and Estate Planning. JUSTIA website. Updated: October 2018. Accessed: October 11, 2019.
- Fletcher C. 8 Estate Planning Moves If You Are Getting Divorced. Forbes website. Posted: June 19, 2019. Accessed: October 11, 2019.
- Inheritance and Divorce. FindLaw website. Accessed: January 22, 2020.
- Inheritance Law and Your Rights. Find Law website. Accessed: October 10, 2019.
- Randolph M. How Does Divorce Affect a Will? NOLO website. Accessed: October 14, 2019.
- Randolph M. Revising Your Estate Plan After Divorce. NOLO website. Accessed: October 11, 2019.
- Rivera J. Automatic Restraining Order. Legal Match website. Updated November 8, 2019. Accessed: February 3, 2020.
- Sember B. Inheritance Rights: Do Your Closest Relatives Have a Right to Claim Part of Your Estate? legalzoom website. Posted March 2015. Accessed: October 11, 2019.
- Thomas A. Freezing Marital Assets: Getting a Financial Restraining Order When You File for Divorce. Lawyers.com website. Accessed: January 22, 2020.