Inheritance can be a tricky subject. Dealing with inheritance issues is often unexpected, and surviving family members may not have a solid grasp of how the process works or who gets what. Some family members may be expecting a huge windfall upon a relative’s death, while others may be worried that they will get nothing. The following guidelines are a base point to help understand how this legal scenario might play out, but there are many factors.
Common Property or Common Law
One major factor surrounding inheritance is the state where the deceased lived. The states of Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska follow “common property” law. This simply means that, regardless of will, a current spouse is automatically entitled to half the value of all assets earned during the marriage, since that person is already considered to be the owner of half of all assets. It is important to note that this law supersedes anything written in the will unless the spouse has signed a legal document to the contrary. Also important is that the law applies only to the current spouse. Ex-spouses are not in any way included nor are they entitled to any inheritance unless the will states otherwise. Finally, in order for the common property law to apply, the spouse must argue the case in court. If no case is brought forward in a timely manner, then the will takes automatic precedence.
This is best portrayed with an example. Ben has recently passed. He is survived by his current wife, Jane. Ben had two children with Jane and another son with his previous wife, Kelly. Ben’s estate is valued at $600,000. His will states that his two children from Jane each get $200,000. His other son gets $100,000 and his wife Jane gets $50,000 and his previous wife Kelly gets $50,000. If Jane does nothing, then the estate will be divided as written. However, if Jane lives in one of the common property states, then she can automatically argue that she is entitled to at least $300,000 of the estate. The court would be obligated to provide her with that $300,000, and then decide how the remaining amount would be divided, following as closely to the will as possible.
In all other states, common law applies. This can vary, although most common law states provide an obligatory one-third of assets to the surviving spouse regardless of will. Again, the spouse must argue this in court if the will provides less than this amount.
Children and Inheritance
Children have no automatic right to inherit. They must be named in the will. However, there are some legal protections to prevent children from being automatically excluded or disinherited. One common protection involves a child born after a will was written and not revised to include that child. The law assumes the parent intended to include the child, but simply overlooked revising the will. The court then attempts to adjust the inheritance to include the new child by the same proportion as other children. Similar extensions exist to include children of deceased children under the idea that the inheritance of the deceased child would have naturally passed to them.
Want to Know More about Inheritance Law?
If you are a surviving relative involved in an inheritance dispute, or are writing your will and want to learn how to avoid them, it is best to consult a qualified attorney. Andrew Lamkin focuses his practice on elder law, estate planning, and probate. For a free consultation, call 516-605-0625 today.