Updated: November 1, 2022
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, vary by state, and have two major consequences.
If you die without a will, your state’s inheritance succession laws will determine who will inherit and how much they are entitled to. While you can name any person or group as a beneficiary in your will, only family members are eligible if you die without a will.
The distribution of your estate to your spouse depends on the inheritance laws in your state and the nature of the asset.
There are two types: community property laws and common law properties. In most states these laws only apply to property that is to be transferred in your will.
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 — California, Nevada, and Washington laws also apply to registered domestic partners.
Alaska allows you and your spouse to sign an agreement creating community property, but it is not mandated by law. Kentucky, South Dakota, and Tennessee allow couples to choose to transfer assets to a community property trust.
Community property includes:
Property that is not considered community owned, (i.e. individually owned) includes any:
In 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 you 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 may bequeath your half of the community property to someone other than your spouse, but you cannot give away their share of the community property. This can make things difficult for some assets, such as a residence or other property. However, this may be possible if you had a prenuptial agreement that allows this.
Your spouse has the right to manage and dispose of any individually owned property acquired before marriage.
Unless otherwise specified in a prenuptial agreement, your spouse controls their share of the community property.
In a state with common property laws, property acquired during marriage is not automatically jointly owned. All states other than the ten listed above as community property states have common property laws.
Even if your surviving spouse does not own any property, the spousal share law protects them 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 and doesn’t petition the probate court or go to court to claim the mandated amount.
Inheritance in this case refers to giving something owned solely by you to your ex-spouse after your death. Your 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.
A financial or automatic restraining order can be obtained by either party that limits certain estate transactions between filing for divorce and the divorce being finalized. Financial restraining orders are automatic in some states.
If you make the effort, you may be able to limit or possibly even eliminate how much inheritance your ex-spouse receives. How much depends on the laws of your state.
Most states automatically revoke bequests (gifts in a will) to an ex-spouse once the divorce becomes final, similar to what would happen if they had 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, whether or not you still want to leave them something.
Even if you do disinherit your ex-spouse, you may not be able to remove them as a beneficiary from everything. For example, your ex-spouse could remain a beneficiary on a life insurance policy while you are paying child support and/or alimony. It is always best to consult a legal professional.
There are many legal ways that could result in your ex-spouse getting part of your estate. For example, your ex:
While most states will automatically remove your ex-spouse as the beneficiary of a revocable trust at the time of your death, if you have an irrevocable trust with your ex-spouse as a beneficiary, they will still be the beneficiary after a divorce.
The same is not true of Payable/Transfer on Death Accounts and Transfer on Death Deeds. You will need to remove your ex-spouse as beneficiary if you do not want the asset to go to them after your death.
Unlike your spouse, your adult children do not have a legal right to inherit your property unless both parents have died. If all you do is not include them in your will, it will usually be assumed that they were unintentionally omitted and will get an inheritance.
If you have named your previous children in the will, children born or adopted after your will was created are protected even if you do not update your will to include them.
While omission of your children may be interpreted as eligibility for inheritance, if you explicitly state that the disinheritance is intentional they will no longer be eligible.
You may choose to make your grandchildren beneficiaries in your will. If you don’t, they would only have a legal right to inherit your property if their parent who is your child is deceased. This is true in most 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.