Who Are Heirs to a Last Will & Testament?

By Beverly Bird

The term “heir” is often confused with “beneficiary” when, in fact, definitions of the two differ. Heirs are individuals who inherit from an estate because they are family members of the deceased, not because they were named as a beneficiary in the deceased’s will. In fact, the deceased may not have left a will at all.

Distinction From Beneficiaries

A beneficiary receives an inheritance through a last will and testament whether she is related to the deceased or not. She receives a bequest because the deceased chose to leave her something. An heir receives an inheritance because her relationship with the deceased is somehow protected from disinheritance by the laws of the state in which she lives.

Inheritance by Disinheritance Laws

Most states will not allow you to disinherit a spouse, and many will not allow you to disinherit a minor child either. Both are your heirs because they have a legal right to a portion of your estate. If you intentionally omit your spouse or your minor children from your will, or if you marry or have children but neglect to remake your will to include them, some states declare your will invalid and disburse your estate according to intestacy laws. Other states override your will to give your omitted family members an “elective share” and the balance of your estate to your other named beneficiaries. In either case, your spouse and children receive something.

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Inheritance by Intestacy Laws

Dying “intestate” means that you have died without a will. When you die and leave no will, each state has a prescribed order of succession for your family members or heirs to inherit those assets you have left behind. In general, if you are married, your spouse receives your entire estate unless you also have children. If that is the case, your estate generally divides among your spouse and your children according to percentages set out in your state’s particular laws. If you are not married and have no children, your assets normally pass to your parents, and if your parents are deceased, they pass to your siblings. If you have no spouse, no children, your parents are deceased and you have no siblings, some states’ laws provide for more distant blood relatives to inherit. Anyone who gets your assets in this fashion is an heir.

Inheritance by Elective Share

An elective share is a percentage of your estate decided by your state’s laws. Your spouse can elect to receive this amount rather than what you left him in your will or if you left him nothing at all. If your spouse takes advantage of his right to an elective share of your estate, he is your heir.

Inheritance by Contest

In some cases, an adult child or more distant relative might believe she deserves a portion of your estate even if you did not put her in your will. Though it is generally very difficult to contest a will and win because the will must be proved legally invalid for some reason, anyone who does so is an heir. In most states, you must have standing to contest a will either because you are a relative or because you are a beneficiary who received less than you think you should have received.

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Wills & Estates in Pennsylvania


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The Rules of Inheritance

The rules of inheritance are set according to state law. Each state has its own statutes that explain which relatives have priority and how much inheritance they are are entitled to receive. These statutes, known as "laws of intestate succession," differ from state to state. However, there is a priority of heirs common in many state statutes.

Ohio Spouse Inheritance Law

Ohio inheritance laws govern distributions made to a husband or wife when their spouse dies and are more than a little complex. Unfortunately, revisions by the Ohio legislature in 2012 didn't help much. As Cleveland attorney and estate planner Kevin Purcell notes, the laws are a "labyrinth of arbitrary rules, a majority of which served no apparent public policy." When a spouse dies and leaves a will excluding the surviving spouse, she may still claim part of the estate. However, when a spouse dies intestate, or without a will, the situation becomes more complicated.

Can I Keep My Assets Separate From My Wife in a Will?

When you undertake estate planning, you may not want to transfer assets to your wife. The degree to which you may want to deny assets to your wife upon your death may vary. You may only want to keep certain assets from your wife so that your children receive them because those goods mean more to them. On the other hand, you may not want to leave your wife anything at all. If you are married at the time of your death, your wife generally has a right to a portion of your estate. You can leave specific assets to other beneficiaries. The degree to which you can keep your wife from inheriting your assets depends on the state in which you live.

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