Does a Spouse Automatically Inherit Everything?

Married couples live together with the understanding that they both own their property. Spouses may also have separate property from before marriage or after an inheritance. When one spouse dies, the surviving spouse’s rights to property depend on the laws of the state where they live.

Without a trust or will, the state where the married couple lives decides what, if anything, a spouse will inherit from the decedent partner. Estate law varies from state to state. Estate planning situations can get complicated quickly. Consult an estate planning attorney in your area for advice on your situation.

What Happens to a Spouse’s Property After Death?

After death, the decedent’s property is distributed according to the estate laws in the state where the person lived. The simplest way to plan for property distribution after death is with a will. A last will and testament tells the probate court where you want your property to go after you die. A trust is another estate planning tool to handle your property after death. Trusts can even bypass the probate process.

If you don’t have a will or trust, your property will go through the state probate process. Property is distributed according to intestacy laws. Intestate means that you die without a will or other estate planning provisions. Intestate laws generally distribute property to surviving family members, including your spouse, children, parents, siblings, and so on.

What Are a Spouse’s Property Rights During the Marriage?

Understanding the procedures of spousal inheritance requires a background understanding of state laws and property. States are generally divided into community property states and equitable distribution states.

Under the equitable distribution method, state family courts focus on fairness or equity. A judge considers many factors for equitable distribution, including the duration of the marriage, the value of real property, income, and the contributions of each spouse to the marital assets.

For example, Florida provides that each spouse’s contribution to the marriage is a factor in determining the equitable distribution of property. This includes income, household work, and childcare.

In community property states, marital property is divided equally. Spouses have an equal property right to any property acquired during the marriage. For example, personal and real property acquired by a married person during the marriage in California is community property.

What Are Probate Laws for Spousal Inheritance?

In most states, a surviving spouse automatically inherits community property assets. This generally includes all property, such as the couple’s home, bank accounts, and cars, that the couple comes to own during their marriage. However, property owned before the marriage, gifts, and inheritances are still separate.

For example, the property you inherit from your parents is usually considered separate property. That separate property may be exempt from automatic inheritance by a surviving spouse. The probate process and state intestacy laws can determine what happens to a probate estate after you die without a will.

Property automatically transfers with a beneficiary designation for family members or joint tenancy. However, you may need an official court order to formally transfer community property assets to the surviving spouse.

Community property laws can overcome inheritance plans conflicting with a spouse’s rights. For example, a court could ignore a will disinheriting a surviving spouse. Community property laws can also overcome a conflicting trust if they violate community rights.

Equitable distribution states will follow common law policies for inheritance. Surviving spouses in these states do not automatically inherit fifty percent of marital property.

Some states allow a surviving spouse to petition a probate court for a one-third or one-half share of their deceased’s estate. Spousal inheritance rights will depend on where the married couple lived at the time of the spouse’s death.

What Happens if There Is No Will or Trust?

Dying without a will or trust is dying intestate. There are default intestacy rules for distributing property after death. Generally, intestacy laws are based on family relations. Property typically goes to the most direct relative and further relatives if no spouse or children exist.

A valid trust or probate bypass mechanism can overcome the default spousal inheritance rights. A valid prenuptial or post-nuptial agreements can also determine what happens to a deceased spouse’s property.

The following examples of inheritance rights show what can happen when a deceased spouse dies without a valid will in California:

• A married couple does not have any minor children. When one spouse dies, the surviving spouse will inherit everything.
• The couple has one child. The surviving spouse will inherit all community property and one-half of the deceased spouse’s separate property. The child will inherit the remaining half of that separate property.
• The couple has two children. The surviving spouse will inherit all community property and one-third of the deceased spouse’s separate property. The surviving children will each inherit one-third of that separate property.

Determining proper inheritance for a surviving spouse depends on several factors. An experienced estate planning lawyer can answer your questions about providing for your loved ones after you pass away.