Understanding Inheritance Rights and Protections

At Wilson & Wilson Estate Planning and Elder Law LLC, we're committed to ensuring that your estate plan reflects your wishes and adheres to the complexities of inheritance laws. It's crucial to understand that in certain circumstances, your nearest kin, namely your spouse and potentially your children or grandchildren, may have legal claims to a portion of your estate, which might override the directives in your will. For comprehensive guidance tailored to your unique situation, contact us at (708) 482-7090 to schedule your Consultation today.

Under the majority of state laws, a surviving spouse has certain protections and cannot be fully disinherited in a will.

If you reside in a community property state, such as Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin, the law stipulates unique ownership rules for marital property. Assets accumulated during the marriage are generally deemed jointly owned, with each spouse entitled to half, barring any differing contractual agreements. Spouses have full control over their respective portions and any separate property they possess.

Outside of community property jurisdictions, no automatic dual ownership of marital property exists. To prevent accidental disinheritance, however, many states guard a surviving spouse's right to claim a portion of the deceased's estate — often ranging from one-third to one-half, regardless of the will's content. The duration of the marriage can sometimes influence this claim. Activation of these statutory rights requires the surviving spouse to affirmatively seek the legal share in court. Absent such action, a will's stipulations are upheld.

Consider the instance where Johanna's will awards $80,000 to her fourth spouse, Fred, distributing the remainder of her near half-million-dollar estate to her sons from previous marriages. Should Fred consent to the designated inheritance, Johanna's wishes are executed as planned. However, Fred possesses the legal latitude to demand an augmentation of his inheritance, potentially surpassing the $80,000 mark, thereby altering the distributions to Johanna's sons.

To secure an estate plan that either accommodates or lawfully limits your spouse's statutory inheritance, especially if the aim is to bequeath less than half or if provisions are situated outside the will, legal counsel is advisable. A signed, informed agreement from your spouse is critical should they agree to your preferred estate plan.

Following a divorce, most states automatically annul any bequests to an ex-spouse outlined in a will. For precautionary measures, it's wise to revise your estate plan post-divorce to ensure your wishes are accurately reflected and legally enforceable.

While children typically lack an inherent right to their parents' assets, specific scenarios might entitle them to a stake in a decedent's estate. State constitutions or statutes, such as those in Florida, may protect a family head's primary residence for the surviving spouse or minor children. Additionally, safeguards exist to prevent the inadvertent pretermission of children, particularly those born subsequent to a will's execution that does not account for the new addition. These children may be entitled to a portion of the estate based on the presumption of unintended exclusion. Certain states extend this consideration to grandchildren if their parent predeceases.

To fully omit a child or descendant from inheritance, clarity in your will is essential. Moreover, welcome new children into your life by ensuring your estate plan is current to reflect these changes.

For legal guidance in navigating these sensitive and important matters, Wilson & Wilson Estate Planning and Elder Law LLC is at your service. Reach out to our knowledgeable team at (708) 482-7090 for a Consultation to safeguard your estate and ensure the fulfillment of your last wishes.