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Inheritance Law

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.
  • You can’t disinherit your current spouse.
  • Unless you have specifically written adult children out of your will they, and sometimes your grandchildren, are entitled to an inheritance.
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 beneficiary of a revocable trust can be changed before your death, while the beneficiary cannot be changed on an irrevocable trust.

Inheritance Rights of a Surviving Spouse

The distribution of your estate to your spouse depends on the inheritance laws in your state and the nature of the asset. 

  • Each state sets a Spousal Elective Share, which is the minimum amount that they are entitled to. 
  • If you choose to leave something in your will, they will have the right to choose between the inheritance you have left or their spousal elective share.

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.

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 — 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:

  • Income received from work;
  • Property bought during the marriage with income from employment; and/or
  • 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 either spouse receives;
  • Property acquired prior to the marriage; and/or
  • Property the spouses agree to be individually owned.

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.

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

Common Law States

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.

  • 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.

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 Rights of a Spouse after Divorce

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.

  • Situations regarding co-ownership can 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 likely retain the house as long as they can afford it.

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. 

  • You should use an attorney to file a motion for a financial restraining order.
  • It prevents either party from removing the other as beneficiary on any documents, such as life insurance policies, retirement accounts or other payable on death accounts, wills, and transfer on death property. In some states you can remove them as the beneficiary from these documents after the divorce, but you must actively do so.
  • It limits access to and withdrawals from bank accounts to “reasonable living expenses” during the divorce proceedings to avoid:
    • Concealing money or other financial assets from the other spouse or from the court;
    • Moving money among accounts to mask amounts;
    • Transferring money to other people to remove from your control; and/or
    • Any other efforts to conceal the existence of assets in question during the divorce or legal separation.
  • It prevents you from:
    • Removing your spouse’s name from bank accounts, credit cards, property, or policies;
    • Buying, selling, or borrowing against property unless already planned and agreed upon;
    • Destroying assets; and/or
    • Emptying bank accounts.

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.

  • In some of these states, bequests to your ex-spouse’s relatives (by blood, adoption, or marriage) are also revoked by the divorce, including any stepchildren.
  • In other states, a divorce has no effect on bequests to your ex-spouse.
  • For any beneficiaries not routinely revoked, you will need to update your will or other documents 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 the assets.
    • 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, whether or not you still want to leave them something.

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

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:

  • Is one of the people allowed to go to court and contest your will; and/or
  • May be able to claim some of your pension based on how long you were married.

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.

Inheritance Rights of Children

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.

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

Inheritance Rights of Grandchildren

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.

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