Who Has the Right to Inherit?

October 13, 2010

When a Last Will and Testament or Revocable Living Trust is created for inheritance estate planning purposes, the testator or trust maker will name beneficiaries to receive his or her property. If any beneficiary receives less than her or she expected or is omitted does that person have a claim to receive a portion of the estate? The answer depends upon state law and the relationship of the beneficiary to the decedent.

Current Spouse

In community property states, a spouse may have a right to half of the marital estate upon the death of the other spouse. If the decedent chooses to completely leave his or her spouse out of the Will or to leave the spouse a portion smaller than half of the estate, the surviving spouse may have a claim against the estate.

In states where community property rules do not exist, a spouse may still have a right to a certain percentage of the estate. This percentage may depend upon how long the couple has been married and what assets were brought into the marriage versus purchased during it. If you are a spouse who feels you may have lost some of your estate to a deceased spouse's estate you may want to seek the assistance of a qualified estate planning and probate attorney.

Former Spouse

A former spouse does not automatically have the right to inherit property from their deceased former spouse's estate. If, however, a couple is separated but not yet divorced, the surviving spouse may have a claim against the marital estate.

Children

If your parent intentionally excluded you from his or her Will, you may not have the right to inherit unless special circumstances exist. If you were omitted from your parent's estate you may want to speak to a qualified inheritance estate planning attorney to discuss your rights. For example, if a child is born after a Will is created and the parent never revises that Will, the child may be able to receive a share of the estate.

On the other hand, if a parent explicitly states that a certain child is to receive nothing from the estate, that child may have little or no grounds to assert a claim or interest in the estate.

Inheritance Estate Planning

It is crucial to keep your Will, Testament, or Revocable Living Trust up to date. Work with an inheritance estate planning attorney to get started or to simply revise your plans.

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