Spousal Property Rights & the Probate Process

by Wayne Thomas
Life insurance proceeds pass to you automatically upon the death of your spouse.

Life insurance proceeds pass to you automatically upon the death of your spouse.

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The death of a spouse can be an incredibly emotional experience. During your time of grieving, settling property matters can be the last thing on your mind. However, regardless of whether your spouse had a valid will, certain types of property must go through a court-supervised process known as probate before ownership can change hands. Knowing what your rights are regarding property owned by your deceased spouse will help you best prepare for the probate process.

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Non-Probate Property

Only property that does not change title automatically at death needs to be submitted to probate for approval by the court. If you owned property jointly with your spouse as tenants by the entirety, this is considered a non-probate asset. A tenancy by the entirety is often used for real estate and contains what is called a right of survivorship, which simply means that your spouse's interest in the property immediately and automatically passes in full to you upon his death. Other types of non-probate property include benefits paid out on life insurance policies, payable on death accounts, and trust distributions.

Intestacy Rules

The probate court will appoint a personal representative to collect and value all of your late spouse's probate assets. After all debts are paid, the representative can begin making distributions of the remaining property according the will. If there is no will, the property will pass according to the state intestacy laws. These laws typically prioritize surviving spouses, children and parents of the deceased. For example, the law may require the first $30,000 and remaining one-half of the estate to go to the surviving spouse, with the other half going to the surviving children, or if no children, the deceased spouse's parents. As a surviving spouse, you are often awarded the entire estate if there are no surviving children or parents.

Elective Share

If your spouse had a will and left you minimal bequests, you may choose to take the "elective share" as provided by state law. The elective share allows a spouse to claim a percentage of her deceased spouse's net assets instead of what is provided by the will. Net assets mean the remaining estate after all debts and expenses are paid. But, because the purpose of the law is to prevent a spouse from being disinherited, your share is typically reduced by any other amounts you received at your spouse's death, including non-probate property. For example if your spouse left $800,000 in net assets and the elective share is one-half, you would be entitled to $400,000. However, if you received $350,000 in life insurance benefits, your share of the net assets would be reduced to $50,000.

Support Allowance

If your spouse dies without a will or you decide to take the elective share, many states allow you to also claim a support allowance in the form of money or personal property, so long as the estate has sufficient assets. The allowance may be distributed before debts and expenses are paid. Some states use a flat number to cap the allowance, such as up to $20,000, and some look at your standard of living during the marriage to determine an appropriate amount to distribute. It is important to note that if you are taking the elective share, any amounts you claim as a support allowance may be used to reduce your share of the net assets.