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Inheritance Rights of Children and Spouses

Published on February 16th, 2020

Generally speaking, your will gives you the right to dispose of your property as you see fit after your death. However, if you choose not to leave property to your spouse and/or your children in your will, or you leave less than you could, it may invalidate the will. Alternatively, your family members could challenge it.

To further complicate matters, the rules that govern whether you can disinherit immediate family members, and under what circumstances, vary by state. Here is a general overview of the rules.

Children

The question of whether you can disinherit children not only depends on where you live, it also depends on how old they are. The laws of some states may protect the inheritance rights of minor children in the event of a parent’s death. This is especially true if it appears that the child may have been “overlooked,” i.e., he or she was born after the will was signed and the parent just never got around to updating it.

However, if the children are grown, the law may give parents more leeway to disinherit their children. There may be legitimate reasons for doing so; the relationship between the two may be strained or nonexistent, or the child may be so well-off as to not need the inheritance as much as his or her siblings. Nevertheless, it may not be a good idea to leave one or more of your children out of your will. The offended party may have grounds to issue a legal challenge.

Spouses

Most state laws stipulate that your spouse must receive something after you die, and you cannot disinherit him or her entirely. However, the rules again vary depending on whether you live in a common law state or a community property state.

If you live in a common law state and what you bequeath to your spouse is less than what he or she would have received if you had left no will, your spouse can choose whether to accept what you allotted in your will or request the minimum share that state law allows. In a community law state, your spouse is automatically entitled to 50% of the community property that you acquire together during the marriage regardless of what your will says. However, separate property, which you acquired before the marriage, is a different matter. This is generally yours to dispose of as you choose, although the laws of some states may allow your spouse to take a portion of your separate property, depending on the circumstances.

Estate planning is a very complicated process, made more so by the various laws that apply in different states. A will lawyer in Roseville, CA can explain your options to you. Contact a law office to schedule a consultation.

Thanks to Yee Law Group for their insight into estate planning and inheritance rights.

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