When someone passes away, their assets are divided between their closest surviving relatives according to predestined and commonplace guidelines. If the person dies without a will, the laws of intestate succession will govern who receives what assets. While these laws vary between states, in most cases priority is given to the surviving spouse, children, parents, and siblings. If a will is written before death, your assets will be divided per your wishes—for the most part. While creating a will gives you more control over the distribution of your estate, there are certain cases that can override what is written in your will.
Spousal Rights
If you intend to leave nothing to your spouse or domestic partner, you might run into some legal obstacles. All states have guidelines in place to protect the surviving spouse from being disinherited or scorned. These states are divided into two categories—common law property states and community property states. Most common law property states give the spouse the right to claim one-third of the deceased’s estate, regardless of what is written in the will. The other common law states base the claim amount on how long the couple was married. Community property states assumes that each spouse automatically owns half of the other’s estate, unless they’ve signed a written agreement stating the contrary. Each spouse can use their share of the property however they’d like.
However, if you and your spouse agree on inheritance rights, you both can sign a waiver to give up all rights to the deceased spouse’s assets. To create this agreement, you and your spouse should meet with an attorney when creating your will.
Family Rights
In most cases, children have no right to inherit from their parents. However, there are two exceptions—minors and overlooked children. In some states, minors can be granted the rights to the family’s inheritance and in Florida specifically, the law prohibits the inheritance from going to anyone other than the spouse or minor child. The law also protects against accidental disinheritance. If a child is not mentioned in a will before death, the law assumes the child was born after the will was written. Because of this, the overlooked child could receive a large portion of their parent’s assets.
If you wish to disinherit just one of your children, make sure they are still mentioned in the will. Clearly state your intentions of disinheritance in your will, otherwise, the state will assume the child was simply overlooked.
Regardless of whether or not you plan to disinherit family members, you should always meet with a qualified living will lawyer, like a living will lawyer in Philadelphia, PA, when creating or revising your will.
Thanks to Klenk Law for their insight into what family members have claim to your possessions after you pass away.