While you can legally leave your property to whomever you like, there are some limitations, specifically involving surviving spouses. In some cases, inheritance rights can override the arrangements you've made in your will.
Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are all “community property” states, meaning that, in the event of death or divorce, spouses are entitled to half of all earnings amassed during the marriage, including any property purchased with those earnings. Alaska is an opt-in community property state, which gives both parties the option to make their property community property.
While you have the right to create a will that provides your surviving spouse with less than half of these earnings, in these 10 states a surviving spouse can contest the will and request that he or she receive the full 50%. (In all likelihood, spouses in these 10 states would be awarded a full 50% by a state court.)
In all other states, spouses have the right to claim around one-third of the deceased spouse’s property (specific laws and amounts vary from state to state). Should the will leave the surviving spouse less than one-third of the deceased’s property, the surviving spouse could have the right to elect against the estate in court.
Inheritance rights of children and grandchildren
In general, children and grandchildren have no legal right to inherit a deceased parent or grandparent’s property. This means that if children or grandchildren are not included as beneficiaries, they will not, in all likelihood, be able to contest the will in court.
However, if children were excluded as beneficiaries accidentally, most states will allow children to contest the will. For example, if an individual created a will that included existing children and then had or adopted a child after the creation of the will and did not update it to include this new child, the state will very often recognize the new child’s right to some of the assets. In this type of situation, the state assumes that the parent did not intentionally disinherit the child but did so accidentally. (Learn about disinheritance on Everplans: Inheritors and Beneficiaries: Disinheritance)
Inheritance rights of exes
Ex-spouses also generally have no legal right to inherit a deceased ex-spouse’s property but can if they are listed as beneficiaries. In the case of divorce, it’s always a good idea to update the listed beneficiary on your accounts and create a new will explicitly revoking the previous will should you no longer want to leave property to your former spouse.
This article is provided by Everplans — a life and legacy planning company dedicated to transforming the way people get their families organized. For more information, visit: everplans.com
Neither Transamerica nor its agents or representatives may provide tax, investment, or legal advice. Anyone to whom this material is promoted, marketed, or recommended should consult with and rely on their own independent tax and legal advisors and financial professional regarding their particular situation and the concepts presented herein.
Things to Consider:
- If you’ve experienced any life changes, such as divorce or additional children, make it a priority to update your will and estate planning.
- You might run into legal issues if you want to leave less than is legally required to a spouse.
- Even though children, grandchildren, and ex-spouses aren’t legally entitled to an inheritance, they can still contest the will in court to get a piece of your estate.
- If you want to make sure a person in your family gets nothing from your estate, you need to specifically disinherit that person.