A Widow's Rights over the Deceased Spouse's Estate

By Jeffry Olson, J.D.

A Widow's Rights over the Deceased Spouse's Estate

By Jeffry Olson, J.D.

A widow has rights over her deceased spouse's estate. Although courts generally favor following the wishes of a decedent expressed in his will, state law may override the terms of the will, establishing a minimum the surviving spouse can inherit. In addition, if the deceased dies without a will, known as dying intestate, state law establishes a widow's rights over the deceased spouse's estate.

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Management of the Estate

The individual responsible for managing the estate of the deceased is the personal representative or executor. If the deceased has a will, that document names the executor of his estate. Courts defer to the wishes of the deceased. However, if the deceased does not have a valid will, the court decides who serves as the personal representative.

A majority of states give priority to a widow to act as the personal representative. Other family members or heirs may petition the court seeking to act as personal representative, but courts generally name the widow.

Inheritance Law in Community Property States

The widow's rights of inheritance over her deceased spouse's estate depend on whether the state is a community property state or common law state.

In a community property state, each spouse has a one-half interest in marital property. Marital property, also known as community property, is generally defined as property acquired by either spouse during the marriage. This would include income from employment and property purchased during the marriage using income. A separate interest is retained in property acquired by inheritance or gift, in property acquired prior to the marriage, or where an agreement exists keeping a piece of property separate.

Each spouse owns a one-half interest in marital property in a community property state. Further, a deceased spouse can give away his share of the community property however he chooses. The owner can dispose of any separate property however they wish. In sum, a deceased spouse can use a will to distribute both separate property and his share of the community property.

Inheritance Law in Common Law States

In common law property states, a spouse is not entitled to one-half of all community property, as is the case in a community property state. In general, the title of the property determines ownership of the property. However, in common law states, inheritance laws establish a minimum inherited by a widow.

If the deceased spouse chose to leave less than the state's mandated inheritance right, the surviving spouse may claim in court the legally determined amount. Note that this requires action from the surviving spouse; if she does not claim the legally determined amount in a court proceeding, the court follows the terms of the will.

The Homestead

Many states make special exceptions for the marital homestead. Depending on the state, a widow may receive a life estate or other interest in the marital homestead. This often does not require going through the probate process.

Widows have rights over their deceased spouse's estate. These rights vary by state, depending on whether the state is a community property state or a common law state. Regardless, every state has laws protecting widows—in some cases, even when the deceased spouse has attempted to disinherit the widow.

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.

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