Inheritance Rights
Related Practice Area Pages
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.
Ex-Spouses’ Rights
In most states, getting divorced automatically revokes gifts made to a former spouse in your will. But to be on the safe side, if you get divorced, make a new will that revokes the old one. Then you can simply leave your former spouse out of your new will.
Children’s Right to Inherit
If your parent dies without a will, you have a right to claim a share of the estate. If your parent disinherits you, under certain circumstances, you may have a claim to object to the validity of the will and if successful, obtain your rightful share of the estate.
Generally, children have no right to inherit anything from their parents. In certain limited circumstances, however, children may be entitled to claim a share of a deceased parent’s property.
An example of some of the different types of situations is if a child is born after the parent made a will that leaves property to siblings, and the parent never revises the will to include that child. The law presumes that the parent didn’t intend to freeze out the newest child, but just didn’t get around to revising the will. In that situation, the overlooked child may have a right to a significant part of the parent’s assets. In some states, these laws apply not only to children, but also to any grandchildren of a child who has died.
If you decide to disinherit a child, or the child of a deceased child, your will should clearly state your intention. And if you have a new child after you’ve made your will, remember to make a new will. To start planning your estate today.
Read More about the Children’s or Siblings Right to Inherit
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.