Marital Estate Rights After Death

by John Cromwell

When a married person dies, the surviving spouse generally has a right to inherit a portion of the deceased person’s property. How much of the decedent's property a surviving spouse is entitled to receive depends on the probate laws of the state where the decedent lived. While probate law varies by state, as of March 2012, the Uniform Probate Code has been enacted in 17 states. As a result, the UPC is a good starting point for a general discussion regarding marital estate rights. If you have specific questions about the laws of your state, consider consulting with a licensed attorney in your area.

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Community Property

Community property is one way a state allocates property after a spouse dies. The concept of community property is used only in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In those states, all assets acquired during the marriage are considered community property and spouses have equal ownership rights in such property. Assets spouses individually owned prior to marriage or acquired through an inheritance or gift are not community property and therefore, not equally shared or controlled. Generally, ownership of community property automatically passes to the surviving spouse.

Spouse Has No Will

When a person dies without a will, his property is placed in intestate. Since there is no evidence regarding how the decedent wanted his property distributed, the court will divide the estate according to the state’s intestate succession laws. Most intestate succession laws divide the decedent’s property among his surviving relatives. Depending on which family members are still alive, the property is generally divided among his spouse, children and parents. If the decedent had no children outside of his marital relationship and no surviving parents, the entirety of his estate will generally go to the surviving spouse. If the decedent has living parents or children who are not related to the surviving spouse, the spouse’s share in the estate will decrease.

Spouse Has a Will

If the deceased spouse leaves a will, the surviving spouse will generally receive some property. If for some reason a spouse is not mentioned in the will, she may still claim from the estate what she would have been entitled to had there not been a will at all. If the decedent provided for his spouse in another way, such as through a trust, the spouse may not be able to make a claim on the decedent’s estate if she is not mentioned in the will.

QTIP Trust

A Qualified Terminable Interest Property Trust (QTIP) is a device that transfers property to a surviving spouse but restricts her ability to transfer those assets. The trust is created when one spouse dies. The surviving spouse gets to use the trust property for the rest of her life, but when she dies, the trust property is then given to the people originally chosen by the first deceased spouse. QTIPs are typically used when a decedent is married to a second spouse but wants to ultimately leave his property to his children from a previous marriage.