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What Rights Do You Have Under an Inheritance Law

Posted by attorney Stephen Mendel

An inheritance law is meant to protect the heirs of the decedent as it pertains to inheriting property. In relation to the surviving spouse, the inheritance laws of a state depend largely on whether that state is considered to be a community property state or a common law state.

If you live in a community property state, it means that assets were accumulated by either spouse during the time of the marriage. Each spouse owns an equal half share of the assets. When a spouse dies, they have the right to dispose of their portion of the assets in any manner that they see fit. This can mean leaving it to their surviving spouse, or to someone else. However, they cannot touch the surviving spouse's half of the assets.

The laws in common law states are different. Even though the laws can differ from state to state, they have roughly the same overall guidelines. In these states, the ownership of property is determined by one of two ways: (1) either by the name that appears on the title; or (2) by determining whose income purchased the property.

Inheritance laws in common law sates can be confusing since title overpowers payment. When a house is deeded to one spouse and paid for by the other, the spouse listed on the deed is the one with ownership rights.

Regardless of the scenario, common law states allow a surviving spouse to claim one-third of the deceased spouse's assets, even if the decedent chooses not to leave this amount in their will. If they leave less than the rightful amount, the surviving spouse need only file a claim through the courts. This opportunity is not available if the surviving spouse fails to file a claim or if they signed an agreement before their spouse's death agreeing to accept a lesser amount.

Unfortunately, children do not have inheritance rights to property owned by a deceased parent. However, the decedent's will must stipulate that a child receive a portion of the estate. This is why a will should be updated as children are born to ensure that they are protected according to the parent's intentions.

In the event of a divorce, the distribution of gifts between spouses differs. In some states, gifts that were intended for the spouse are automatically rescinded, meaning the divorce overrides the splitting of property. But in other states, a divorce does not affect the inheritance of a spouse's assets.

We at the Mendel Law Firm can help you uncover your options and choose the strategy that is best for you.

Additional resources provided by the author

The Mendel Law Firm, L.P.
1155 Dairy Ashford, Suite 104
Houston, TX 77079
O: 281-759-3213
F: 281-759-3214

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