Spouse's Rights After Death

By Beverly Bird

Marriage carries with it certain rights. Spouses have an obligation to support each other, even if one spouse just contributes household labor so the other is free to go out to work. Spouses also have obligations to each other after one of them dies, and these obligations translate to rights that states protect with their probate laws.

Marriage carries with it certain rights. Spouses have an obligation to support each other, even if one spouse just contributes household labor so the other is free to go out to work. Spouses also have obligations to each other after one of them dies, and these obligations translate to rights that states protect with their probate laws.

Disinheritance

Unless you live in Georgia, you can't legally disinherit your spouse, and even Georgia law guarantees a surviving spouse a year's worth of income off the top of a decedent's estate before any debts or expenses are paid. All other states provide for something called "elective shares." If you write your spouse out of your will, or leave just a nominal amount, your spouse can elect against accepting what you bequeathed to her, if anything. A spouse has the right to veto the terms of the decedent's will and accept a statutory percentage of his estate instead. State laws vary as to the exact percentage. In Pennsylvania, for example, a spouse receives one-third of the estate, but other states may award more than that.

Protect your loved ones by a legally binding will. Make a Will Online Now

When There's No Will

In legal terms, a decedent dies "intestate" if he does not leave a will. When this occurs, states' laws of intestate succession take over. Intestate succession relates to a list of kin who statutorily inherit in an order of priority set by state law. The order is set according to what the law assumes the decedent would have wanted, so spouses are always first in line. They must only share the estate if the decedent left any children, either those he had with his surviving spouse or children from a previous marriage or relationship. By law, spouses have a right to at least a portion of the decedent's estate if the decedent dies intestate.

Real Estate

Florida law mandates that a decedent can only leave his home to his spouse and his children, but other states have different ways of securing a surviving spouse's right to the marital home. Some states recognize tenancies held by the entirety between husbands and wives. With this type of deed, the home passes directly to the surviving spouse without the necessity of probate to transfer title. This means the property is usually safe from the decedent's creditors. Joint tenancies with rights of survivorship work the same way. However, these rights to the marital home are elected by spouses. They choose them voluntarily; state laws don't mandate them.

Community Property States

The law works differently in the nine community property states. In these jurisdictions, spouses equally own everything they acquire during the marriage. Therefore, a decedent can only bequeath half a couple's marital property to beneficiaries other than his spouse -- the half that is legally his. A surviving spouse always retains her own half, and she may have a right to the other half as well, if the decedent dies without a will. If the decedent doesn't leave any children and his parents have predeceased him, his spouse has a right to his entire half of the community property. Otherwise, she would receive a share of his half of the community property, with the balance going to his children or, in some states, his parents. Community property states don't recognize elective shares in the same way other states do, because surviving spouses automatically have a right to half the marital estate.

Protect your loved ones by a legally binding will. Make a Will Online Now
California Community Property Laws Regarding Children From a Former Marriage

References

Related articles

Mississippi Estate Inheritance Laws

If a Mississippi resident fails to make arrangements for the division of his property by making a will, his property will be divided according to state law. These laws are known as "laws of intestate succession," and they provide a distribution scheme that dictates a priority of heirs. In other words, certain relatives are entitled to all, or a portion of, a decedent's estate under certain circumstances -- if he didn't make a valid will. Dying without a valid will is known as dying "intestate."

How Much of a Husband's Estate Is a Widow in Florida Entitled To?

In Florida, a husband is free to leave everything to his wife in his will, if he has a will. However, if he doesn’t make a will – or if he makes a will but doesn’t leave enough of his estate to his wife – Florida law steps in to determine how much of the husband’s estate the wife is entitled to when he dies.

The Widow's Legal Rights in South Carolina

South Carolina law provides a surviving spouse with the right to inherit from her deceased spouse's estate. An estate includes all property the decedent acquired during his lifetime. If a decedent had a will, the widow receives any bequest from the will. If there is a will, but the spouse is not included, she will still receive an inheritance in accordance with South Carolina's "elective share" laws. If a decedent dies without a will, the widow will inherit based on South Carolina's laws of intestate succession.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Marital Rights in Connecticut

Marriage gives spouses throughout the United States certain rights when it comes to inheritance and divorce. However, ...

New York State Marital Inheritance Laws

In New York, as elsewhere, marriage gives spouses certain indelible rights when their partner dies. These inheritance ...

Laws Regarding Spousal Inheritance Rights in Georgia

If you have concerns about an inheritance from your spouse, you better hope you don't live in Georgia. At the time of ...

Colorado State Laws on Community Property When a Spouse Dies

When a Colorado spouse dies, his property is distributed by the terms of his will, if he has one; however, a spouse ...

Browse by category