Understanding Inheritance Rights

Entitlements of Your Next-of-Kin

Certain close relatives, such as a surviving spouse and potentially children or grandchildren, may have a legitimate claim to an inheritance that could supersede the stipulations set forth in your will. Below is an overview of how inheritance rights typically operate:

Protections for a Surviving Spouse

The law usually dictates that a surviving spouse cannot be entirely excluded from a will.

Rules of Community Property States

In community property states, which include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, the laws specify how marital property is owned and may be claimed. Generally, each spouse has an equal claim to any earnings by either spouse during the marriage unless stated otherwise by a formal agreement. They may independently manage their half of the community assets and any separate property they each possess.

Regulations in Other States

Outside of community property states, there is no assumption that marital assets are jointly owned. Nevertheless, to safeguard the interests of surviving spouses from disinheritance, these states typically allow them to claim about one-third to one-half of the deceased partner’s estate, regardless of what is contained in the will. The duration of the marriage can influence the proportion available to the surviving spouse.

These legal measures are only effective if the surviving spouse asserts their legal right in court. If they consent to the terms of the will—even if it awards them less—the will prevails.


Consider the situation where Johanna’s will bequeaths $80,000 to her fourth husband, Fred, while allocating the remainder of her estate worth around $500,000 to her children from previous marriages. If Fred is content with what he receives, Johanna’s will stands. However, if Fred seeks a larger portion, he is entitled to claim more from Johanna’s estate, which may exceed the $80,000 designated in her will. Consequently, Johanna’s children would inherit the remainder after Fred’s claim is settled.

To avoid complications, if you do not plan to leave a substantial portion of your estate to your spouse in your will, seek legal advice from a professional, unless your spouse has agreed in writing to your distribution plan.

Rights of Former Spouses

Typically, divorce nullifies any gifts allocated to an ex-spouse in a will. To prevent any uncertainty, it is wise to create a new will post-divorce, eliminating the former spouse from your estate plans.

Inheritance Claims by Children

While children are generally not entitled to inherit by default, there are exceptions where they might claim a portion of a deceased parent’s assets. For instance, the Florida constitution prevents a household’s main provider from leaving their primary residence to anyone but a spouse or minor child if they are surviving.

States often have statutes offering protection against unintended disinheritance. This can apply if a child is born after a will is made and is not included, possibly due to oversight. The law may infer that the parent did not intentionally disregard the child, merely failing to update the will. Such an omitted child might then be eligible for a share of the estate.

This kind of legal consideration may also extend to grandchildren if the parent-child has passed away.

Should you choose to exclude a child or a descendant of a deceased child from your will, it is crucial that the will explicitly reflects this decision. Additionally, if a new child arrives after the creation of a will, it is important to draw up a new will to include them.

For tailored advice concerning estate planning and inheritance matters, please contact James H. Wilson Law Firm at 804.740.6464. Our team is ready to guide you through these sensitive legal processes.

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