The Rights of Children of a Deceased Person

By Ellis Roanhorse

Generally, a deceased parent has no obligation to leave property to her children. In fact, nearly every state allows a parent to completely disown her children in a will. If a parent did not leave a will, however, children may have rights to property as dictated by state law. Additionally, children are considered "interested persons," meaning they have a right to contest a parent's will if they have valid grounds.

Parent Left a Will

Generally, children are entitled to receive whatever their parent devises to them in a last will and testament. The only time a devise to children may be invalid is if the parent left more to her children than she was allowed to by law. For example, in community property states, marital assets are considered equally owned by both spouses. Thus, a surviving spouse is entitled to a certain portion of the marital estate; a deceased spouse cannot disinherit a spouse entirely or leave more than what she owned to her children in a will. If a parent left a will and left her child out, but did not explicitly disinherit her child, the child may have a right to an inheritance because it may be assumed the parent omitted her child by accident.

Parent Did Not Leave a Will

When a parent does not leave a will, she is said to have died "intestate." Children may have inheritance rights under certain circumstances if their parent dies without a will, particularly in states that are not community property states. In community property states, a surviving spouse is generally entitled to a deceased spouse's half of the estate -- and the half he already owns -- if the deceased spouse did not leave a will; this leaves the surviving spouse with 100 percent of the estate. However, a surviving spouse may not be entitled to the same amount in states that are not community property states -- known as common-law states. In these states, if a parent with one child did not make a will, but was married when she died, her surviving spouse may be entitled to at least half of the estate. However, if the deceased parent did not make a will and had more than one child, it is common for the surviving spouse to receive one-third of the estate; the other two-thirds typically pass to her children in equal shares.

Protect your loved ones. Start My Estate Plan

Probate Courts

A parent's estate may be probated whether she left a will or not. Probate courts help divide property according to a will or the inheritance laws of a particular state. If a parent left a will, and the will was admitted to a probate court, children typically have the right to demand an accounting of their parent's assets from the executor of the estate.

Will Contests

Children also have a right to contest a parent's will if they have valid legal grounds. For example, if a child was left out of a will and believes her parent's will is invalid because her parent was controlled by another person while making it -- or lacked the capacity to understand what she was doing while making it -- the child may contest the will in probate court. If the probate court is satisfied with a child's testimony, the court may grant an appropriate share of the parent's estate to the child.

Protect your loved ones. Start My Estate Plan
Legal Recourse if Left out of a Will as a Daughter


Related articles

Marital Estate Rights After Death

When a married person dies, the surviving spouse generally has a right to inherit a portion of the deceased person’s property. How much of the decedent's property a surviving spouse is entitled to receive depends on the probate laws of the state where the decedent lived. While probate law varies by state, as of March 2012, the Uniform Probate Code has been enacted in 17 states. As a result, the UPC is a good starting point for a general discussion regarding marital estate rights. If you have specific questions about the laws of your state, consider consulting with a licensed attorney in your area.

Laws Governing Estate Inheritance for Children in Louisiana

The rights of children to inherit their parents' estates are governed by Louisiana's Civil Code. The state's Civil Code is unique in many way. For example, Louisiana is the only state that prohibits parents from disinheriting children under 24 years of age. In this sense, a child has a greater right to inherit his parents' property in Louisiana than in other states.

Does My Spouse Inherit Everything When I Die?

Whether your spouse inherits your entire estate depends on your state's laws. If you die without a will, your estate is divided according to state intestacy laws. If you had a will, your spouse's share is partly dependent on what you left her and whether you have surviving children or parents. Any part of your estate not subject to your state's estate laws, such as your retirement account, automatically belongs to the person you put as beneficiary on the account paperwork. Property you owned jointly with your spouse, such as your home, usually belongs to her as soon as you die.

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

Related articles

North Dakota Inheritance Law

According to North Dakota's Uniform Probate Code, a state resident can explain how he would like his property divided ...

Laws on Inheritances

Every state has its own set of unique laws that govern inheritance. These laws, known as "laws of intestate ...

New York's Children Inheritance Laws

In New York, a parent may make a will devising property to children. New York also allows parents to disinherit a child ...

Rhode Island Inheritance Laws

If a Rhode Island resident makes a valid will, she gets to choose how her property is divided. Rhode Island law ...

Browse by category
Ready to Begin? GET STARTED