Most people assume that their close relatives will inherit only what is left to them in the will. Inheritance laws are more complex than this and there are some unexpected inheritance rights that you may not anticipate.
No last will
If you die without a will, your estate is divided among your closest relatives according to your state’s intestate statutes. Generally, this divides your assets among your spouse and children. If you have no spouse or children, it is divided among grandchildren, parents, or other more distant relatives.
Community property
Inheritance law is particularly complex when it comes to what your spouse is entitled to. If you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin; Alaska is also included if you and your spouse sign an agreement creating community property) any property earned or obtained during your marriage is community property. Property you each brought into the marriage or received via gift or inheritance during the marriage is not included and remains separate. Each spouse owns one half of the community property of the marriage. When you die, you can decide in your will who gets your half of the community property, but you can’t give away the half your spouse owns. This can make it difficult for inheriting a house owned in the marriage. If the home is community property, you can’t give it in full to your child or anyone else you select. You can only leave your half of the ownership. Note that you and your spouse can create a written agreement affecting ownership and distribution of your community property that can supersede the community property inheritance law.
Your spouse’s right of election
Most non-community property states have laws that prevent complete disinheritance of a spouse in a will. When determining what is inheritance for a spouse in these states, it is important to understand the spousal right of election, or elective right. This law states that no matter what your will says, your spouse has a right to inherit one-third or one-half (depending on the state and sometimes depending on the length of the marriage) of your total estate. To exercise this right, your spouse has to petition the probate court to enforce the law. If your spouse does not do so, your will is carried out as it is written. Note that these laws in most states apply only to assets that are passed through a will. You can transfer your property using other methods, such as trusts, pay on death accounts, and gifts during lifetime to avoid the right of election.
Changing your will after a divorce
If you and your spouse get a divorce, but you don’t get around to changing your will, most states invalidate any provision in the will leaving things to your ex. This is not true in all states, so it is important to change your will after you divorce. You can still leave things to your ex after your divorce but it is best to have a new will written that clarifies this.
Children’s rights
Children have no right of election under a will. If you disinherit your child his or her only option is to contest the will, get it thrown out, and inherit part of your estate under state intestacy statutes. There is an exception: if you write your will, then have a child or children born or adopted after the date the will was created, many states assume you meant for your “after born children” (as they are called) to be treated the same way you treated the children named in your will. So in this multiple inheritance situation, if you left all of your estate to be divided among your two living sons (so they would get 50% each) and then you have a daughter after the will is signed, all three children would receive 33%. This same rule is also sometimes applied to after born grandchildren. One state, Florida, has a law that prohibits the head of a family from leaving a home to anyone but a spouse or minor child if they are alive, so children receive some protection there.
Taxes on inheritance
Inheritance tax is applied no matter how the assets are transferred—via a will, through intestate succession, or through a right of election. Probate taxes are applied to any assets passing through probate, and estate tax applies to estates over $5.43 million for federal tax. Each state sets its own state estate tax, with many states not having any.
Inheritance laws are complex, and it is important to understand your state’s rules when you are creating your will or planning your estate. Careful planning will allow you to ensure your assets are passed to the people you intend to receive them.
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FAQs
If you die without a will, your estate is divided among your closest relatives according to your state's intestate statutes. Generally, this divides your assets among your spouse and children. If you have no spouse or children, it is divided among grandchildren, parents, or other more distant relatives.
Who has the right to inheritance? ›
But some state laws may give a decedent's closest relatives — such as a surviving spouse, children, and even grandchildren — a legal right to claim an inheritance. This right may apply even if these heirs were not named in the last will and testament.
Does inheritance have to be shared equally? ›
If there is no surviving partner, the children of a person who has died without leaving a will inherit the whole estate. This applies however much the estate is worth. If there are two or more children, the estate will be divided equally between them.
Who is first in line for inheritance? ›
In the absence of a surviving spouse, the person who is next of kin inherits the estate. The line of inheritance begins with direct offspring, starting with their children, then their grandchildren, followed by any great-grandchildren, and so on.
What are inherited rights? ›
Inheritance rights determine who has the legal right to claim your property after you die. Estate Planning. In some cases, inheritance rights can override the arrangements you've made in your Will.
Can you lose your inheritance? ›
In fact, the will may explicitly state that you are being given nothing or a token sum, such as one dollar. You cannot overturn the will, unless you can prove that the parent was not legally competent, or was being coerced, when the will was created. The only way to lose an inheritance is to spend it unwisely.
What are the rules for inheritance? ›
If you die without a will, your estate is divided among your closest relatives according to your state's intestate statutes. Generally, this divides your assets among your spouse and children. If you have no spouse or children, it is divided among grandchildren, parents, or other more distant relatives.
Should siblings receive the same inheritance? ›
Should Each Child Get the Same Inheritance? Dividing up your estate and giving each of your kids an equal share may make the most sense if their histories and circ*mstances are similar—that is, they have received similar support from you in the past, they are responsible, and they are emotionally and mentally capable.
How is inheritance split between siblings? ›
Usually, siblings will each be given an equal share of the Estate through probate court.
What is the inheritance order? ›
Probate laws outline an order of succession based upon the relationship of the heir to the decedent. Generally, the order is: spouse, children, parents, siblings, and children of siblings. If there are no living heirs in one category, the property goes to the next category.
It is only necessary to designate a beneficiary if you want payment to be made in a way other than the following order of precedence: To your widow or widower. If none, to your child or children equally, and descendants of deceased children by representation. If none, to your parents equally or to the surviving parent.
What is the order of inheritance called? ›
Order of succession - Wikipedia.
What is the lawsuit against inheritance? ›
There are a number of reasons why a family member might sue for an inheritance, including disputes over the distribution of assets, disagreements over the interpretation of a will or trust, or allegations of undue influence or fraud.
How long after death is inheritance? ›
For a straightforward estate with no property and a single bank account it could take as little as 6 months for beneficiaries to receive their inheritance.
Who are the primary heirs? ›
And who are these heirs? The primary compulsory heirs are your legitimate children and descendants. The concurrent compulsory heirs are your spouse and illegitimate children. Your secondary compulsory heirs are your legitimate parents and ascendants.
Does inheritance go to kids or spouse? ›
Surviving Spouse: Inherits 100% of all community property always. Spouse and two or more children (of deceased): 2/3 of Separate Property. Children share equally of the 2/3 share.
Who gets the inheritance in the estate? ›
Generally, only spouses, registered domestic partners, and blood relatives inherit under intestate succession laws; unmarried partners, friends, and charities get nothing. If the deceased person was married, the surviving spouse usually gets the largest share.
What does a wife inherit when her husband dies? ›
California is a community property state, which means that following the death of a spouse, the surviving spouse will have entitlement to one-half of the community property (i.e., property that was acquired over the course of the marriage, regardless of which spouse acquired it).
Can you leave everything to your children and not your spouse? ›
If you leave money to your children through an irrevocable trust, technically the trust owns the money – not the beneficiary. An irrevocable trust can protect your assets and require the trust executor to follow your exact wishes for the distribution of your assets, even if your child dies or becomes divorced.
