About Inheritance Rights

What happens if you don't have a will? What happens if a close relative wants to challenge the terms in your will? Depending on your state's laws, certain relatives could have a claim on a portion of your property, regardless of what your will says. Specifically, a surviving spouse and children could have a claim to more than is laid out for them in a will.

Inheritance Rights of a Spouse

Generally speaking, it is not possible to entirely keep one's spouse out of a will. In community property states, each spouse owns precisely one half of all marital property, except in cases where couples have signed an agreement that stipulates another type of split. A spouse's share of the property is one's to do with as one wishes. Community property states include: Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Each state will further have its own regulations concerning community property.

As for non-community property states, rules will differ a considerable amount as well. For one thing, spouses are not guaranteed any share of the marital property. But a surviving spouse usually has the right to contest a will that excludes him or her, generally being able to claim 33 to 50 percent of the decedent's property. This will not happen automatically, however: the spouse has to file the claim in court. A will can only be overridden if someone challenges it.

For instance, let's say a wife wills $50,000 of her $400,000 estate to her surviving husband, and she wills the rest to three children she had in a prior marriage. If the husband is content with those terms, the will is going to be honored. If the husband would like more of the estate, however, he can probably get it if he files a claim. The children would inherit the remainder of the property.

Inheritance Rights of an Ex-Spouse?

A former spouse usually will not have any right to claim the property of an ex. In fact, a divorce in almost any state will instantly cut out the portions of a will that mention an ex-spouse. It never hurts to take precautions, however, so after a divorce, it is advisable that you revoke your current will and create an entirely new one.

Children's Inheritance Rights

As a rule, a child does not have rights to any portion of a deceased parent's property. But there are state laws that may allow a child to file a claim for property if they are left out of a will, or to keep a child from being unintentionally disinherited.

As one example, Florida's laws do not let a parent will a residence away from a surviving spouse or minor child. As for accidentally being disinherited, state laws make provisions for children who are born after their parents had initially created a will. Those children will be automatically included in the will on the assumption that their being omitted was simply a failure to update the will. Sometimes, such protections will extend to grandchildren of a deceased child.

For the legal counsel you may need to create a will that holds up in court, or if you want to object to a will, talk to a probate attorney today to learn more about your options under your state's laws.