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Your Family’s Rights to Your Estate

I’m afraid that my large estate will be tied up in probate for a long time after my death. Will my family receive any allowances to provide for their living expenses before my estate gets settled?

Your family’s rights to your estate include a family allowance, homestead exemption, and personal property exemption. Your family can receive all three. They are in addition to gifts in the will, the elective share, or an intestate share.

Family Allowance. Provides the spouse and minor children with a monetary allowance for living expenses during the estate’s administration. Amount varies by state law.

Homestead Allowance. Protects the family home from any claims by the estate’s creditors. Some states provide that the spouse and children can live in the home for up to a specific period of time. Others will grant a sum of money to cover housing expenses.

Personal Property Exemption. Protects tangible personal property items for the family’s use. Usually applies to items such as furniture, household items, jewelry, and vehicles.

My husband left me only a very small share of his substantial estate in his will. Do I have any recourse?

Yes. You have the right to renounce, or reject, the will and file for an “elective share” (provided by statute) of your husband’s estate. It is usually one-half or one-third of his estate. This right protects surviving spouses from getting disinherited or getting left with minimal gifts.

For purposes of determining what property makes up your husband’s estate, most states even include any nonprobate transfers in which he retained an ownership interest when he died. Examples include joint bank accounts or joint tenancies. Including nonprobate property prevents a spouse from transferring all of his property into nonprobate transfers, thereby effectively defeating the elective share. If you decide to take your elective share, you must file for it within a certain amount of time (ranging from 4 to 9 months) after your husband’s death. To make up your share, all the gifts in the will are proportionately reduced. That way each beneficiary contributes to your share of the estate.

Your family’s rights to your estate vary by state law, so check your state’s statutes to find out what the elective share amounts to. Some states condition the amount you receive on the length of your marriage.

I live in a “community property” state. What does that mean with respect to the property that I own?

Your family’s rights to your estate may differ in community property states. Community property means all property acquired by you and your spouse while married. Community property does not include property that each of you owned before your marriage. Nor does it include anything that either of you receive individually (e.g., by will) during your marriage .

The community property states are Arizona, California, Idaho, Louisiana, Nebraska, New Mexico, Texas, Washington, and Wisconsin. If you live in one of these states then you own 50% of your community property. Your spouse owns the other 50%. This means that you can give away only your one-half share of the property, and your spouse can do as he pleases with respect to his share. For example, if you and your spouse bought a vacation house after you got married, the house is community property. When you die, you can only give away your one-half share in the house. The beneficiary of that share will then own the house as a tenant in common with your spouse.

I executed a will a few years ago and I just got married. What rights will my new spouse have in my estate if I die before changing the will?

Your spouse has several options. Your family’s rights to your estate depend on the laws of your state. First and foremost, she can file for her elective share and receive up to one-third or one-half of your estate. If your state has a “pretermitted spouse” statute, she may be entitled to an intestate share of your estate. In most states this amounts to one-half if you are survived by any descendants. Additionally, your spouse will receive the allowances allowed by law – family, homestead, and exempt personal property.

TIP: The event of a remarriage is a good time to revise your will. This is especially true if you want your spouse to receive more than what she is entitled to under the law.

How will a prenuptial agreement affect my spouse’s rights to my estate?

A prenuptial agreement can affect your family’s rights to your estate. Depending on the terms of the agreement, it can limit, and in some cases even waive, your spouse’s right to share in your estate. For the agreement to be valid, it must have been entered into voluntarily. Also your spouse must have understood the meaning of the agreement. E.g., that she forfeited any rights to your estate.

My partner and I never married. How can I make sure that he will receive my property when I die?

To protect your partner, you must execute a carefully thought-out estate plan.  Otherwise, he may receive nothing. Some ideas are to make lifetime gifts to him, set up joint accounts with him; name him as beneficiary of any trust, life insurance policy, or otherwise; and provide for him in your will. If you fail to take these important steps, your partner will not receive any of your property – not even under your state’s intestate succession laws. Nor will he be entitled to an elective share or any of the family allowances.

TIP: Nonprobate transfers are best in this instance because the transfer on death is automatic. There will be no delay in the event your will is contested or your estate is tied up in probate.

I never changed my will after my divorce and it names my ex-spouse as a beneficiary. Will she have any rights to my property when I die?

No. Any gifts or appointments that are in favor of your ex-spouse are invalid. The property that you left to your ex-spouse will pass as if your spouse died before you. It will fall into your residuary clause or pass under intestate succession.

TIP: If you go through a divorce, then you should protect your property by writing a codicil to your will with respect to the property that you devised to your ex-spouse. Your ex-spouse will not receive the property if you fail to do this. But you might want to control who the beneficiary will be.

What about any property that I left to my ex-spouse’s children from her previous marriage? Are those gifts invalid too?

No. The divorce revokes only the gifts to your ex-spouse. Any gifts to her family members are still valid. If you do not want her children to share in your estate, then you need to adjust your will accordingly.

What if my ex-spouse and I remarried a few years before my death? Is the gift still invalid?

No. The laws in your state affect your family’s rights to your estate. In many states, remarriage will revalidate those portions of the will that were revoked by the divorce. Your spouse will still receive the property that you originally devised to her.

I gave birth to a child after executing my will. Will he be left with nothing?

No. Most states allow a child who is born or adopted after a will is executed to receive a share in the estate, usually equal to what he would have received under intestacy. Some states do limit this right if the will indicates a clear intent to disinherit the testator’s children, or if the child is provided for by some nonprobate transfer.

Is there a limit on how much I can leave to my minor children?

No. You can leave as much as you like to your children. However, your family’s rights to your estate differ bases on state laws. For example, if you choose to leave gifts of over a certain amount, which varies by state law but is typically $2,500, then you need to designate a responsible adult (called a “property guardian”) who can manage that property for your child until he reaches the age of majority. At that point the child gains full control over the property.

TIP: Keep in mind that in some states the age of majority is 18. At that age, many kids are not yet responsible with large sums of money. Consider leaving the property to your child in a trust or custodial account instead. That way you can better control, and even delay, his receipt of it.

I don’t want to leave anything to my oldest child. Can I put something in the will that disinherits her?

Your family’s rights to your estate depend on the laws in your state. A disinheritance clause in a will is called a “negative bequest clause,” and is ineffective in some states. The best way to make sure that your daughter does not receive anything is to completely dispose of all your belongings. If you die without having disposed of all your belongings, she will have rights to them under intestate distribution.

I had a very close relationship with my mother. Although she provided for me in her will, she left me only a small share of her substantial estate. She left the remainder of her estate to a friend she hasn’t seen in 10 years. What are my rights?

Unfortunately, you cannot claim a larger share in your mother’s estate than what she gave you in her will, unless you can prove that she was mentally incompetent or that there was some type of fraud by her friend. Given that she hasn’t seen her in 10 years, that is unlikely. The mere fact that the disposition seems unfair is not enough motivation for a court to risk altering your mother’s wishes. Thus, you receive what she left to you, and nothing more.

I inherited a generous portion of my friend’s estate, but I don’t want to accept it because I recently had a judgment entered against me and fear that I may lose it to my creditor. Can I reject the gift?

Yes. You can reject all or part of a gift if you file a valid disclaimer with the court within 9 months after your friend’s death. The disclaimer must be in a writing signed by you and must describe the property that you are rejecting. The gift that you reject will then pass under your friend’s residuary clause or to her intestate heirs (if she did not have a residuary clause).

Before my father’s death, he promised me that he would leave me $20,000 in his will. When the will went to probate, it did not include the gift that he promised me. The executor refuses to pay it. Can I sue the estate for the $20,000?

No. The mere fact that your father promised to leave you something in his will does not give you sufficient grounds to sue the estate. To win, you would have to prove not only that there was a contract between you and your father that he would leave the gift. You would have to show more than the fact that he orally promised the gift. You would also have to prove that the gift was in exchange for some type of service that you provided him, such as taking care of him during his final illness.

My grandfather’s will devises his artwork to me. But when the executor inventoried his estate, he learned that my grandfather sold the artwork to an art gallery before he died. Can I get it back from the gallery?

No. The bequest to you is ineffective because your grandfather no longer owned the artwork when he died. The laws in your state govern your family’s rights to your estate.

My boyfriend’s will named me as a beneficiary. But the court found the will invalid because only one witness signed it. So now I receive nothing. Can I sue the attorney who prepared the will?

It depends on the law of your state, but most states will allow you to sue the attorney for his negligence. A few states allow only the client to sue the attorney, which leaves you with no recourse because the client is now dead.

My brother left his entire estate to a local charity. Can he do that?

Yes, as long as your state does not place any monetary limit on gifts to charities. The laws in your state govern your family’s rights to your estate.

Your Family's Rights to Your Estate

Read a LegalZoom article about your family’s rights to your estate.