The Rights of Children of a Deceased Person

By Stephanie Kurose, J.D.

The Rights of Children of a Deceased Person

By Stephanie Kurose, J.D.

A parent has no obligation to leave their children any property upon their death. And while it may seem harsh, nearly every state allows a parent to actually disown or disavow a child in their will. However, because children are generally considered "interested persons," they may have a right to contest their parent's will in certain circumstances. Also, if a parent died without a will, children may have rights to property as heirs under state law.

Man holding pencil to temple reading paperwork

A Child's Rights if There Is a Will

If there is a valid will, the executor, overseen by a probate court, is required to distribute any assets according to the document's terms. Generally, a child is entitled to receive whatever property their parents left to them. In some cases, a parent may disown a child and leave nothing behind for them. While this is generally legal, the disinheritance must be very explicit or else a court may assume that the parent left the child out by accident. In that case, the child may have a right to inherit property under state law.

In some cases, a parent may leave a child more property than is allowed under state law. For instance, marital assets are equally owned by both spouses in a community property state. Thus, a parent cannot leave certain marital property to a child because the surviving spouse is entitled to a portion of the marital estate.

A Child's Rights if There Is Not a Will

When a parent dies without a will, a probate court applies the state's default laws of intestate succession. In general, children have inheritance rights if a parent dies without a will, particularly in states that are not community property states—states where marital assets are equally owned by both spouses. In community property states, the surviving spouse generally receives the deceased spouse's half of the estate. In these states, a child is not entitled to inherit any property.

By contrast, in common law states—states where each spouse owns their own property—the surviving spouse and the children generally inherit an equal share of the deceased parent's property. For example, if there is only one child, then the surviving spouse is entitled to half of the estate and the child is entitled to the other half. If there are two children, then the surviving spouse and the two children each receive a third of the property.

A Child's Additional Rights

Because a child is considered an "interested person" in regards to their parent's property, they have a right to contest a parent's will if they believe something is wrong. For example, if the child had a good relationship with the parent but was left out of the will, the child can contest it in the probate court. They can argue to the judge that they were accidentally omitted from the will.

A child, as either a beneficiary or an heir, also has a right to stay informed about how the will's executor is administering the estate. This includes how property is being valued, how and when creditors are being paid, and how assets are being distributed.

If you would like more information about a child's rights during the probate process, reach out to an online service provider today.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.