A spouse or child may be absent from a will or explicitly left little to nothing. Sometimes spouses and children agree during the testator’s life to be left out of a will or to inherit much less property than what they would otherwise be entitled to inherit. A will is not invalid simply because a testator leaves a very small amount to their spouse or child, yet the will may cause tension if such an outcome was unexpected. Parties might achieve the best result by negotiating a fair solution among themselves, but surviving spouses and children may also have the option to litigate the matter in probate court.
Surviving Spouses’ Rights
No testator may completely disinherit their spouse against the spouse’s wishes. If a will attempts to disinherit a spouse in some way, the spouse may be protected by state law. Each state has laws regarding spousal inheritance, which generally follow one of three approaches: the traditional spousal share approach, the augmented estate approach, or the community property approach.
Some states allow surviving spouses to inherit the couple’s “homestead” (their residence), even if the testator’s will leaves the property to someone else.
Under the traditional spousal share approach, a spouse who receives little or nothing of the estate under a will may go to court to claim between one-third and one-half of the estate. This court process is sometimes called “taking against the will.” Specific spousal share laws vary. For example, a spouse may be entitled to a life estate in the decedent’s real estate, a certain percentage or dollar amount of the property, or the amount that they would have inherited had there been no will at all. State law may even allow a spouse to receive a portion of non-probate property. The time limit for these claims is often a few months after probate proceedings begin. If a spouse succeeds in taking against the will, their share will usually come from the residuary estate first and then from property left as specific gifts, if necessary.
Under the augmented estate approach, a spouse may claim a share of the couple’s combined property, sometimes as much as 50 percent. Often, the share of the augmented estate to which the spouse is entitled is proportional to the length of the marriage. The property that belongs in the augmented estate varies, but generally it includes all property that goes through probate (minus exemptions and debts), all of the decedent’s non-probate transfers, the value of any large gift given away by the decedent shortly before death, and all of the surviving spouse’s property, including anything inherited from the decedent.
Under the community property approach, each spouse has ownership over half of the couple’s community property. This is true even before one spouse dies, so spouses who own community property with the decedent are automatically entitled to half of that property without litigating the matter in court. Furthermore, some community property states allow a spouse to claim an additional share of property not covered by community property rules under certain circumstances.
Immediate family members may also be entitled to a family allowance to cover short-term expenses while the estate proceeds through probate.
Children’s and Grandchildren’s Rights
In contrast to spouses, children do not have protected inheritance rights. A parent has the right to completely disinherit a child without reason. However, a child unintentionally omitted from a will may have some recourse. Courts generally assume that a parent intended their child to inherit if they were inexplicably left out of the will. For instance, a child born after their parent executed a will leaving property to their children would most likely be entitled to a share of that property or to inherit what they would have had there been no will at all. State law or supplementary evidence may lend more guidance. For example, a child born after their parent executed a will may still not inherit if their parent also left out another child who was born before the will was executed. A court may look at the language of the testator’s will to determine whether a child was intentionally omitted.
Grandchildren have even less right to inherit from their grandparents. The only exception might be if a state allows a grandchild to step into their deceased parent’s shoes and make a claim based on their deceased parent’s right to inherit.