The Rights of Children From a First Marriage

By Heather Frances J.D.

After your death, your assets will be distributed to your beneficiaries or heirs once your debts are paid. Who inherits from you depends on whether you leave a will, your state's laws and each person's legal relationship to you. With proper estate planning, you can ensure that your children inherit exactly the shares you want them to have. Otherwise, state law may give them more or less than you would have wanted.

Rights in a Will

You can leave property to pretty much anyone after you pass away if you use a will to do so. You can leave a greater share to one child than another child, for example, or even disinherit a child completely. You can also leave property to your stepchildren who would not normally inherit from you otherwise. Thus, if you want to ensure your property is distributed to your children in the amounts you wish to leave them, a will is typically the best way to make sure they receive what you want them to have. If your children are minors, you can also use your will to establish who will hold the assets for each child until he becomes an adult.

Contesting a Will

There are few restrictions on this right to distribute your property as you wish, but most states provide a spousal inheritance right, sometimes called an elective share, that restricts your ability to disinherit your spouse. Generally, you must leave at least a state-established minimum amount to your spouse but you can leave the rest of your estate to the children from your first marriage if you wish. Your spouse or children may not like the distribution arrangement in your will, however, and may wish to challenge it. Such challenges, called will contests, can invalidate the entire will if successful, and they are generally based on defects in the will itself rather than the unfairness of its terms even if unfairness is the ultimate motivation behind the challenge. For example, a child from your second marriage may challenge the will because it is not signed properly, even if what he really wants is to get the will thrown out so that he can get a greater share of your estate. To discourage such challenges, you can add a no-contest clause to the will stating that anyone who loses a will challenge also loses whatever share of the estate he might otherwise have received.

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Intestate Succession Laws

If you die without a will, your children may have inheritance rights according to your state’s intestate succession laws. State laws vary, however, so your children may have greater or lesser rights depending on your exact family situation and your state. For example, your state's laws may give your entire estate to your spouse if you die without a will, leaving children from your first marriage without any inheritance rights; however, your state could split your estate, dividing your estate between your spouse and children. Generally, state laws do not give your spouse's children from her first marriage any rights to your estate if they are not considered your legal children.

Estate Administration

Generally, estates must go through a probate process after the estate owner dies, so your estate will likely be processed through court before being distributed. The court will name an administrator, sometimes called an executor or personal representative, to manage your estate while it is in probate. You can use your will to nominate a person to fulfill this role or the court can give administrative authority to any suitable person who wants to take on the role. If you are concerned that your children from your first marriage may not be allowed to participate in the process as much as you would like, you can nominate one or more of them to act as your estate's administrator. However, under intestate succession laws, your spouse typically has first priority to act as administrator.

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Children's Rights in Estate Wills


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What Happens When a Will Goes to Probate?

If you have assets at the time of your death, they must still pass through the probate process so your outstanding bills are paid and the remaining assets go to your statutory heirs -- persons whom by the law in your particular state are deemed to have the right to inherit from you. If you leave a will, the process is overseen by your chosen executor.

Probate Laws on the Next of Kin

When someone dies without a will, state laws -- the so-called "laws of intestate succession" -- determine who inherits the estate. If the deceased left a surviving spouse or children, these people are considered "next of kin" and generally inherit the entire estate. Although state laws vary, there is a common descent and distribution scheme that applies to determine who is next of kin -- that is, next in line to inherit -- if there is no surviving spouse or children.

Are Stepchildren Considered Children in a Will?

Your stepchildren may be as close to you as your biological children, but their legal ties to you are different. When planning your will, you may want to include specific language that identifies your stepchildren by name or specifically includes them. Otherwise, they may not be considered children who can inherit under the terms of your will.

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