Family Law – Inheritance

When you make a will, you have an affect on your family. Find out what kind of issues may arise when you’re handling this important task.

Joint tenancy

“My father’s will left me all of his property, but at his death title to his home was held in his name and my sister’s name as “joint tenants”. She claims the home is hers. Is she right?”

Yes. Any property your father owned with another person as joint tenants (or with his spouse as tenants by the entirety) passed automatically to the surviving joint tenant upon his death.

What if the will “disinherits” a child?

“Dad’s will left me all his property. My younger brother is upset and claims Dad had no right to disinherit him. Is he right?”

No, except in Louisiana, a parent is under no obligation to leave his children anything. Your younger brother will have no claim to any of the assets in your dad’s estate, unless he was born after your dad executed his will. This exception is intended to prevent the inadvertent disinheritance of a child born after a will is executed.

Can one spouse leave the other out of a will?

“Dad died last month, leaving a small gift to his second wife and the rest of his estate to me. His second wife is claiming she is entitled to some of the property dad left me. Does she have a case?”

Yes – if they resided in a “separate property” state at the time of your dad’s death. In almost all separate property states, as a matter of public policy, the surviving spouse is entitled to a statutory “forced share”. This usually amounts to one-third of the deceased spouse’s estate. States that have adopted the Uniform Probate Code employ a very complicated formula that takes into account many factors, including the length of the marriage, in determining the surviving spouse’s forced or elective share. In “community property” states, the surviving spouse generally has no right to a forced share, because the surviving spouse already owns half of all community property (property earned during the marriage). The first spouse to die can dispose of only half the community property acquired during the marriage.

What if the will was made before the marriage?

“I married John 3 years ago. When we married he had three children by his prior marriage. His 4-year old will left them all of his estate. He never got around to revising his will and died last week. Do I have any rights to his estate?”

Yes, for if a person with a will marries and never revises his will, the law presumes that he inadvertently failed to provide for his new spouse. Thus she is generally entitled to receive her “intestate” share (the share required by law when someone dies without a will) of his estate. Since John was survived by more than one child, your intestate share of John’s estate will likely be one-third. The rest of John’s estate will pass according to his will. If you and John resided in a community property state, you would be entitled to all of the community property acquired during your three-year marriage. The rest of John’s property would pass to his children under his will.

What if the will was made before a divorce?

“Dad just died. His 4-year old will leaves half his property to me and half to mom – who divorced him 3 years ago. Their marital settlement agreement says nothing about his will. Can mom still take under his will?”

The law presumes that after there is a divorce your dad no longer wanted your mom to take his property when he died. Consequently, in most states divorce revokes the will to the former spouse. This would mean that your dad’s will is still valid, but that your mom will be treated as if she died before him. Thus, she will not be permitted to take anything under the will. In a few states, the divorce will entirely revoke your dad’s will, which will mean that he died “intestate”.

Lesson: If you get divorced, make a new will.

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