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When a spouse dies, the surviving spouse has many concerns, both emotional and often financial. One of the most important things they must ascertain is what assets they will inherit in order to provide for themselves and any children or grandchildren in the absence of their spouse. This process is governed by what is known as inheritance law. Unfortunately, it can be a confusing set of rules affected by many factors.
What are some of these factors? And what should you know about each? Here's a short guide to the four most common.
1. The Existence of a Will
Certainly, if your spouse wrote a will, this is usually followed by the probate court. However, there are limits to whether or not a will is completely enforced. Many states do not permit a spouse to be completely disinherited and receive nothing. When this is the case, the surviving spouse can often seek a hearing in probate court to contest some or all of the provisions in the will.
2. Community Property and Common Law Rules
Each state makes its own inheritance rules to provide for surviving spouses. These rules are divided into two types: community property and common law. In states which follow community property rules, each spouse generally has a right to half the marital estate.
In common law states, the spouse is only initially entitled to assets that are in his or her name. However, to prevent a spouse from being completely left out if there are no marital assets in their name, common law states often provide what's known as an elective share. This elective share may assign between 1/3 and 1/2 of the deceased spouse's estate to the survivor.
3. Pre- and Post-Nuptial Agreements
Did you sign a pre-nuptial or post-nuptial agreement? If so, it may take precedence over state inheritance law. A properly drafted and legally valid prenup wherein both spouses agreed to a smaller inheritance — or even no inheritance — for the surviving spouse may be deemed legally binding.
4. Source and Use of Assets
Finally, the survivor may need to determine the source of certain assets of their deceased partner. If the late spouse inherited assets, these may not be considered community property. Similarly, assets earned after the date of a divorce or separation may not be part of the spousal inheritance either. Co-mingling, though, can turn such assets into community property depending on the usage.
Where to Start
Clearly, inheritance law can be complicated. Your best resource as a surviving spouse is an experienced inheritance attorney in your state of residence. With their guidance and your own diligence, you can learn what estate you have a right to and how to ensure you and your family receive what's fair. Call today to make an appointment.
For more information, contact an inheritance lawyer near you.
Share27 December 2021