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Inheritance Rights

Inheritance Rights

Your closest relatives may have a right to claim part of your estate

Some very close relatives—a surviving spouse and sometimes children or grandchildren—have the right to claim an inheritance, and in some cases this can override what it says in your will. Here’s how it works:

A Spouse’s Right to Inherit

A spouse, also known as a widow, has the right to a share of the decedent’s estate. If that surviving spouse signed an agreement waiving his or her share, then s/he does not. However, absent that written express waiver to one’s estate, the widow has a right to a share of the estate. The intestacy laws and right of election statute will provide for the appropriate protection. It can be the first $50,000.00 plus 50% of the Estate, if the decedent had children. Our office will take the necessary steps to file the claim for the spouse.

If the decedent had a will that did not leave anything to the spouse, the widow can still file and claim his or her share.

If you fail as a surviving spouse to file, the appropriate claims you may waive same. Thus, consult with an attorney immediately.

Other states

In all other states, there is no rule that property acquired during marriage is owned by both spouses. But to protect spouses from being disinherited, most of these states give a surviving spouse the right to claim one-third to one-half of the deceased spouse’s estate, no matter what the will provides. In some states, the amount the surviving spouse can claim depends on how long the couple was married.

These provisions kick in only if the survivor goes to court and claims the share allowed by law. If a surviving spouse doesn’t object to receiving less, the will is honored as written.

Example:

Johanna’s will leaves $80,000 to her fourth husband, Fred, and divides the rest of her property, totaling almost $500,000, among her three sons from previous marriages. If Fred is happy with his inheritance, everything will go according to Johanna’s plan. But if Fred wants more, he can claim a share of Johanna’s estate—and get substantially more than $80,000. If he does, Johanna’s three sons will take what’s left.

If you don’t plan to leave at least half of your property to your spouse in your will, and have not provided for him or her generously outside your will, you should consult with a lawyer unless your spouse willingly consents, in writing, to your plan. In all other states, there is no rule that property acquired during marriage is owned by both spouses. But to protect spouses from being disinherited, most of these states give a surviving spouse the right to claim one-third to one-half of the deceased spouse’s estate, no matter what the will provides.

These provisions kick in only if the survivor goes to court and claims the share allowed by law. If a surviving spouse doesn’t object to receiving less, the will is honored as written.

Kinship Hearings

If you are a decedent or cousin, perhaps a kinship hearing is appropriate, and you will need to file a claim and the necessary documents to prove your relationship to the decedent including present evidence such as documents, testimony and other at a hearing held by the Surrogate’s Court.

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