When married people die, does everything automatically passes to your spouse and children? You are thinking of state rules that apply if someone dies without leaving a will. Referred to as dying intestate, rules vary. State laws dictate this. But generally, the court will award your spouse a share of what you own. Also, they may divide the rest between your children or parents, depending on your situation. Exactly how much your spouse will inherit depends on the state law, though.
Spousal Automatic Inheritance?
Now, it may seem like so far, so good. Your spouse is getting an inheritance, and so are the kids. But here are some examples of how the laws can fail in many common family situations.
First, when it comes to who will get your money and property, most states’ laws presume that a family comprises a married couple and their biological children. But because many families do not operate this way, things can quickly become legally complicated.
One analysis identified 50 different types of family structures in American households. Approximately 40 percent of all marriages in the United States are remarriages for at least one spouse, and—through adoption and stepfamilies—millions of children are living in blended families. Unfortunately, the laws have not kept up, and absurd results can occur if you rely on intestacy as your estate plan. Stepchildren whom you helped raise (but did not legally adopt) may end up with no inheritance, while a soon-to-be-ex-spouse may inherit from you.
Automatic Inheritance Transfers
Another issue with relying on state law is that none of the transfers to your loved ones happen automatically. Your family must open a probate estate with the court and go through the process specified in state law before your property can transfer out of your name and into theirs. This process can be long and costly. It is also public. Many people prefer that an inventory of their property and the details of their family stay out of the public eye. Perhaps the best way to keep your matters private is by creating and funding a revocable living trust while you are alive and have the legal capacity to do so.
Do Children Receive an Automatic Inheritance from their Parents?
Furthermore, if both parents of minor-aged children die intestate, this leaves children without a legal guardian. Kids do not automatically go to a godparent or grandparent, even if that is what everyone knew the parents had intended. Instead, a court will appoint someone to be the children’s guardian. In such situations, the judge seeks to act in the children’s best interests and gathers information on the parents, the children, and the family circumstances. But the decision is up to the court; the judge, following the priority listed in the state’s law, may not choose the person that you, as their parent, would have chosen. If you had created a valid will during your lifetime, you would have been able to communicate to the judge whom you would have liked to appoint as guardian.
What if You and Your Spouse Separate?
State law determines what happens to your money and property if you and your spouse separate. In some states, the court ignores your separation and still considers you legally married. If the state intestacy law (which, again, applies if you die without a valid will) grants spouses a share of your property at your death, as most do, then your estranged spouse may be entitled to all or a portion of it when you die.
Also, some state laws or court orders prohibit you from disinheriting your spouse after you file for divorce but before it is finalized unless you have a prenuptial or postnuptial agreement. Without one of these agreements, you can try to omit your spouse from your will or your trust, but state law may kick in to require that a surviving spouse (who, again, is treated as being legally married to you) be given a share of what you own.
If you are separated from your spouse and your divorce is pending, talk with your divorce lawyer and an estate planning attorney about your options.
The best way to safeguard and pass along what you have worked so hard to build is to talk to a qualified estate planning attorney. Protect yourself, your family, and your money and property by contacting us today.
About Skvarna Law Firm in Glendora and Upland, California
Skvarna Law Firm operates offices in Glendora and Upland, California. We provide legal services. We cover San Bernardino, Los Angeles, Orange, and Riverside Counties. This includes several cities. Upland, Ontario, Rancho Cucamonga, Fontana, Colton, Rialto, Chino, Chino Hills, Glendora, Claremont, Pomona, La Verne, Montclair, San Dimas, Azusa, Covina, West Covina, Diamond Bar, Walnut, La Puente, Corona, Norco & Mira Loma. Visit SkvarnaLaw.com to learn more.
