Inheritance law dictates the legal rights of someone who is set to or believes that they should inherit property from someone that recently passed away. State laws govern inheritance laws and these laws will change depending on whether you were a spouse, child, grandchild, or friend to the person who died. Furthermore, these legal rights also change depending on if someone has a last will and testament. There are many complex and moving parts that one must navigate if they are to successfully complete the inheritance process. Thus, hiring a knowledgeable and experienced inheritance lawyer can help you and your family quickly and easily complete inheritance. Antonoplos & Associates group of inheritance attorneys have over 20 years of experience, integrity, and credibility helping clients initiate, work through, and settle their probate case.
Inheritance Rights of a Surviving Spouse
How a state deals with the distribution of assets depends largely on whether a state follows community property or common inheritance law. States that follow community property laws include: Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska. Every other state follows common law regarding inheritance.
Inheritance Law in States that Use Community Property
Community property refers to assets that either spouse acquires during marriage or partnership. This property can include basic income, real estate, or other personal property. Furthermore, in most cases, the assets will be considered community property when acquired during the marriage or partnership. However, community property can also be property that a spouse gives to the community. A spouse may exclude assets from community property if they acquire the property in the following ways:
- Acquisition of the property prior to marriage
- Inheritance or a gift
- An agreement that both spouses create to keep the specific property separate from the marriage community
In a state that follows these community property laws, each spouse owns half of each asset that the couple acquires during marriage. Furthermore, one spouse may give up their right of ownership to any asset. Additionally, each spouse has sole ownership of their property. Thus, when a spouse passes away, they can leave their half of the assets within community property to someone other than their spouse. This means that someone could distribute both their own separate property and their community property to anyone that they desire. Finally, someone cannot give away the half of the assets that belongs to their spouse.
Inheritance Laws in States that Use Common Law
Inheritance laws in states that follow common law, spouses have no right to property that the other spouse solely acquires during marriage. Thus, both spouses do not always have ownership rights to property that the couple acquires during their marriage. Instead, ownership of assets is determined by the name on the property title or by finding out what spouses’ income was used to purchase the property. This means that the title may be in the husband’s name, yet the wife’s income was entirely used to purchase the property. If this occurs, the husband entirely owns the asset.
In most common law states, if a spouse dies that owns all the property acquired during the marriage and does not have a will, the other spouse is entitled to at least one-third of the property. Thus, if the decedent leaves a will where the other spouse receives less than one-third of the assets, the surviving spouse could make a claim in court to inherit the predetermined amount. However, the one exception to this is if the surviving spouse signs a document agreeing to accept less than one-third of the property.
Inheritance Rights of a Spouse after Divorce
Each state has different laws concerning what happens to inheritance rights to a spouse after a divorce. Most states revoke gifts put into wills after the divorce occurs. However, in other states, a divorce has no effect on gifts made by one party to another in their last will and testament. Thus, to ensure that your assets are going to the exact party you desire, you should create a new will and update your trusts and remove your ex-spouse from these documents.
Inheritance Rights of Children
States give automatic rights to a person’s spouse. However, a person’s child has no legal right to inheriting a person’s property. This means that if a person leaves their children out of a will, the children will have no legal claim to this property. However, courts do assume that if a child is not in a will, it was done accidentally. Thus, if a child is born after someone creates a will, they may have a claim to their parents’ property. To avoid conflict, a person should expressly state this fact in their last will and testament.
Inheritance Rights of Grandchildren
Even more so then a child, a grandchild does not have a legal right to inherit property from a grandparent. However, similar to the child, if a will does not expressly state that the grandchild should not receive any property, the grandchild may be able to claim some of the property.
Do You Have to be Related to a Deceased Person to Inherit
You do not have to be related to someone to inherit their property if they create a will. However, if a person dies without a will, they die “intestate”. Intestate means that a persons property will go to their family under the terms of state laws. Typically, intestate laws do not include non-relatives in their inheritance provisions. Thus, if a person has a will, you could inherit their property. However, if the person dies without a will, you are very unlikely to inherit any of their property.
Final Thoughts
Because each state has specific laws and procedures tied to inheritance, finding correct and relevant information is difficult. By hiring an inheritance attorney, you are enlisting someone with knowledge of the state-specific laws. Furthermore, you will also have someone on your side to help you deal with potential creditors. Finally, an inheritance attorney will be able to help you distribute the assets in the most tax-efficient way.
Finally, an inheritance attorney is helpful in assisting with marshaling and valuing all the estate assets, assisting with finishing the accounting, completing the estate tax returns (death tax returns), and overseeing the asset distribution process. Most importantly, however, an inheritance attorney can asset the personal representative with preparing the initial pleadings to open the estate. An inheritance attorney can also help to guide the personal representative through their fiduciary obligations and important deadlines.
Contact our law office for more information
For more information on our group of DC inheritance lawyers, contact Antonoplos & Associates at 202-803-5676. You can also directly schedule a consultation with one of our attorneys. Additionally, for general information regarding inheritance law, check out our blog.