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How Inheritance Laws Work

Inheritance refers to when someone dies and passes on their assets, property, and rights to decedents. Survivors of the deceased may be bequeathed all or some of the individual’s belongings according to the person’s will. However, inheritance law also comes into play and sometimes overrides the stipulations of the will.

What Does the Inheritance Law Do?

Inheritance law is the rules that apply to descendants of the deceased. In some cases spouses, children and even grandchildren have rights to an individual’s estate even if they are not specified in the will. Each state in the U.S. has different inheritance laws, so before making a claim, you will need to check the details.

According to inheritance law, an “heir” is someone who is a person entitled to an inheritance from the deceased. Their entitlement may come from the will directly or from state laws. You do not become an heir until the person dies. Before that, you are referred to as heir apparent. Those named in a person’s will are called beneficiaries.

In historical times certain societies allowed only specific bloodlines such as only the males in the family or females to inherit property after death.

Inheritance law protects the rights of surviving descendants despite the existence of a will and its directives.

Spouses Rights

In many states, it is entirely acceptable to cut your spouse out of the will. However in “community property” states like Alaska, Nevada, Idaho, New Mexico, Texas, Wisconsin, Arizona, Washington, and California, during the marriage, the spouse automatically owns half of everything. You can choose to leave your half to someone other than your spouse, but you cannot bequeath any more than your half. What your spouse owned during the marriage, they keep after your death.

In Common Law states, the property is handled very differently. During the marriage, any assets that are acquired by either party are owned by whoever is on the title. Even if the other spouse paid for it, if it is in the other person’s name, they own it. Therefore inheritance law in those states does not protect or guarantee any specific rights to marital property other than what they legally own the rights to already. However, common law states do generally protect a surviving spouse against complete disinheritance. In some states, the spouse has the right to petition for 1/3 of their deceased partner’s assets. The spouse will have to make a claim in court to attain their guaranteed inheritance.

Children’s Rights

Unlike spouses, generally, children have no legal rights to inheritance other than what is promised to them in a will. Although states do differ on inheritance law, in most cases children are not protected even if an error is made in the will; they are not entitled to any assets after a parent’s death. In some rare cases where a child is omitted by accident, they can state a claim and inherit a portion of the estate.

In most states grandchildren also have no protection if they are not stipulated in the will. However, some limited areas in the U.S. do allow grandchildren to make claims on the property if a grandparent dies without bequeathing anything to them in the will.

With and Without a Will

It is critically important to have a will, even if you don’t own that much property or have assets of value. If you die without a will referred to as “intestate,” the state will determine your division and distribution of your assets to heirs. Your property might consist of money in the bank, stocks, real estate, automobiles, art or other holdings. If you own real estate in other states, then intestacy laws will apply.

Depending on the intestacy state laws your estate could be equally distributed to all your relatives including aunts, uncles, cousins, nieces, nephews, and your children and surviving spouse. That is why it is so important to explicitly specify in a will who you want to get what and how much.

If you die single with no children, your parents (if both are alive) will get your entire estate. If only one parent is living, your estate will be divided among all your siblings and your surviving parent.

In the case of dying single with children, your estate will be equally divided among your children.

If you die and you are married without any children, your estate will go to either your spouse or be divided among your spouse, siblings, and parents.

When you die and leave a spouse and children behind without having a will, the state will divide your assets equally between the kids and parent.

Unfortunately dying without a will is tricky for unmarried couples and domestic partners. Each state may or may not observe eligibility rules for partners who are not married.