Your Spouse’s and Children’s Rights to Inherit From You

You don't have to leave your children anything, but see a lawyer if you don't plan to provide for your spouse.

If you’re wondering whether you must leave your spouse or children any of your property, you will find the following information useful.

However, if you’re concerned that someone in your family might challenge the terms of your trust, contest your will, or call your capacity into question, do not hesitate to get help from a lawyer. A good estate planning attorney can ensure that your wishes will be followed, even when your wishes are not aligned with the wishes of your family.

Do I Have to Leave Anything to My Spouse or Partner?

If you intend to leave your spouse or registered domestic partner very little or no property, you may run into some legal roadblocks. Common law property states protect a surviving spouse or partner from being completely disinherited -- and most assure that a spouse has the right to receive a substantial share of a deceased spouse's property. Community property states offer a different kind of protection.

Spousal Protection in Common Law States

In a common law state, a shortchanged surviving spouse or domestic partner usually has the option of either taking what the will provides, called "taking under the will," or rejecting the gift and instead taking the minimum share allowed by state law, called "taking against the will." In some states, your spouse may have the right to inherit the family residence, or at least use it for his or her life. The Florida constitution, for example, gives a surviving spouse the deceased spouse's residence.

Laws protecting spouses and domestic partners vary among common states. In some, a spouse or partner is entitled to one-third of the property left in the will. In others, it is one-half. The exact amount of the spouse's minimum share may also depend on whether there are also minor children and whether the spouse has been provided for outside the will by trusts or other means.

EXAMPLE: Leonard's will leaves $50,000 to his second wife, June, and the rest of his property, totaling $400,000, to May and April, his daughters from his first marriage. June can choose instead to receive her statutory share of Leonard's estate, which will be far more than $50,000. To the probable dismay of May and April, their shares will be substantially reduced; they will share what is left of Leonard's property after June gets her statutory share.

Of course, these are just options; a spouse who is not unhappy with the share he or she receives by will is free to let it stand. And in almost all states, one spouse or partner can give up all rights to inherit any property by completing and signing a waiver. If you want to make that type of arrangement, consult a lawyer.

Family Allowances in Common Law States

Some states provide additional, relatively minor protection for immediate family members. These vary from state to state in too much detail to discuss here. Generally, however, these devices attempt to ensure that your spouse and children are not left out in the cold after your death, by allowing them temporary protection (such as the right to remain in the family home for a short period) or funds (typically, living expenses while an estate is being probated).

In many common law states, how much the surviving spouse is entitled to receive depends on what that spouse receives both under the will and outside of the will -- for example, through joint tenancy or a living trust -- as well as what the surviving spouse owns. The total of all of these is called the augmented estate.

While the augmented estate concept is rather complicated, its purpose is easy to grasp. Basically, almost all property of both spouses is taken into account, and the surviving spouse gets a piece of the whole pie.

Spousal Protection in Community Property States

Most community property states do not give surviving spouses or registered domestic partners the right to take a share of the deceased spouse's or partner's estate. Instead, they try to protect spouses or registered domestic partners while both are still alive, by granting each spouse or partner half ownership of property and earnings either spouse or partner acquires during the marriage.

However, in a few states -- under very limited circumstances -- a surviving spouse or domestic partner may elect to take a portion of the deceased spouse's community or separate property. These laws are designed to prevent spouses and domestic partners from being either accidentally overlooked -- for example, if one spouse or partner makes a will before marriage or partnership and forgets to change it afterwards to include the new spouse or partner -- or deliberately deprived of their fair share of property. These protections are available in Alaska (Alaska Stat. §§ 13.12.201 and following), California (California Prob. Code §§ 21610 and following), Idaho (Idaho Code §§ 15-2-202 and following), Washington (Wash. Rev. Code §§ 26.16.240 and following) and Wisconsin (Wis. Stat. §§ 861.02 and following). If you want to learn more about them, consult a lawyer.

Can I Disinherit My Child?

Children usually have no right to inherit anything from their parents. There are two exceptions: laws that give minor children certain rights and laws that protect children who are unintentionally overlooked in a will.

Minor Children

State law may give your minor children (less than 18 years old) the right to inherit the family residence. The Florida constitution, for example, prohibits the head of a family from leaving his or her residence in his will (except to a spouse) if he or she is survived by a spouse or minor child. (Fla. Const. Art. 10, § 4.)

Overlooked Children

State laws protect offspring who appear to have been unintentionally overlooked in a parent's will. As the use of living trusts becomes more widespread, states have begun to expand protection to children who go unmentioned in living trusts.

Typically, these laws protect a child born after the parent's will is signed. The law presumes that the parent didn't mean to cut that child out but simply didn't get around to writing a new will. The child can claim a share (the size depends on state law) of the deceased parent's property, which may include property in a living trust.

If you don't want to leave any property to one or more of your children, the easy way to avoid any later misunderstandings or legal claims is to make a will and mention each child in it. You don't have to leave a child any property.

Overlooked Grandchildren

Children have no right to inherit from their grandparents unless their parent has died. In that case, the grandchildren can claim whatever the deceased child would have been legally entitled to receive.

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