What Must a Surviving Spouse Inherit?

by Andrine Redsteer

The amount a surviving spouse must inherit depends on a number of factors, including whether the married couple lived in a community property state and whether the deceased spouse made a will. If no will was left, then the spouse died "intestate," which means the surviving spouse’s share of the estate is governed by state law. If the decedent did make a will, the surviving spouse receives whatever was devised to her; however, the spouse's share of the estate cannot be less than prescribed by state law.

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Intestate Share: Community Property States

In community property states, marriage is regarded as a partnership and most assets acquired during the marriage are owned equally by both spouses. Some assets are not subject to equal division, including separate property such as gifts and inheritances. When a married person dies without a will, his surviving spouse receives her rightful share as mandated by state law. Generally, inheritance laws in community property states give the surviving spouse the entire estate if there are no surviving children. If there are surviving children, the spouse typically receives her deceased partner's half of the estate and one-third to one-half of all separate property.

Testate Share: Community Property States

When an individual dies with a will, he dies "testate." If a married individual made a will devising everything to his spouse, the property is distributed accordingly. In community property states, a married person may devise his 50 percent share to someone other than his spouse. However, he cannot devise more than his 50 percent share of marital property to someone other than his spouse, or attempt to disinherit the spouse, because she already owns 50 percent of the community property.

Common Law States

Common law states differ from community property states in that assets may be divided unequally in a divorce if the court finds that such division is fair. However, if a married person does not leave a will, the surviving spouse is generally entitled to the same portion of the estate as in community property states – the entire estate if there are no children and between one-half to one-third if there are children. As in community property states, if a deceased spouse left everything to his surviving spouse in his will, she is entitled to it.

Non-Probate Property

Regardless of the jurisdiction, certain types of property automatically go to a surviving spouse. Property owned as a joint tenants with right of survivorship must go to the surviving spouse; a spouse cannot bequeath his half of a joint tenancy to someone other than his spouse. Other types of property also go to the surviving spouse, such as the proceeds from a life insurance policy on which the surviving spouse was listed as beneficiary.