Probate and Estate Planning


Estate planning often involves making sure you take care of your family in the case of death or incapacitation. From your home to valuable gems, you have to make decisions on who gets what.

Attorney John Rogers says inheritance law favors spouses of decedents. “We have two types of state laws that apply to inheritance rights. Under both state inheritance laws, spouses receive priority in the disbursement of property. Spouses enjoy automatic inheritance rights in many cases, while children have to file cases in the court system to get their cases for inheritance heard.”

Rogers has the license to practice law in a state that has common law inheritance statutes. He says the other legal method for determining inheritance rights in other states-community property -makes it much easier to determine who gets what after property owner dies.

The legal decision on who gets what answer the question how does estate planning law affect inheritance?

Overview of Inheritance Law

Inheritance law clearly sets guidelines for the rights of decedent survivors to receive assets and personal property. States mandate inheritance rights that frequently override what decedents have declared in legally created wills or trusts. The inheritance rights you enjoy in your state depend on whether your state follows common or community property law.

Community Property Rights for a Surviving Spouse

Nine states follow community property inheritance law: Alaska, California, Nevada, Texas, Washington, New Mexico, Wisconsin, Arizona, and Idaho. Under legal guidelines, community property refers to the property acquired by either spouse during marriage. Community property includes income received from employment and property purchased from income generated from employment. A spouse retains the right of acquiring property through inheritance or acquisition of property before marriage. Community property law mandates each spouse controls a 50% share of property acquired during marriage. Each spouse has the legal right in a community property state to bequeath his or her one-half share of property to anyone or any organization, from a child to a non-profit charity.

Inheritance Rights In Common Law States

In common law states, property acquired during marriage is owned by the person whose name is on the title of the property. This is especially important for determining who inherits a home, which represents the most common type of property that includes a title. Another method for determining property ownership is by determining which of the spouse’s income purchased the property, if a court rules a title is not legally sound way to make an ownership decision. However, surviving spouses enjoy protection from disinheritance in common law states. A decedent might leave less that what a state requires in a common law state, but the surviving spouse has the legal right to make a claim in court to receive a predetermined amount of the decedent’s property.

The Inheritance Rights of Children

Children typically do not enjoy the legal right to inherit the property left behind by a parent. Inheritance law protects children in the case of an unintentional omission. Estate planning statutes consider children born after the creation of a will to be the legal inheritors of decedent property. Wills that clearly define an omission and the reason for an omission leave a child with no legal recourse to claim property left by a deceased parent.

The complexity of inheritance law requires the legal counsel of a licensed estate planning lawyer. Most estate planning attorneys offer a free consultation that gives you a good idea whether you have a legitimate claim to inherit assets and personal property.

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