The Jurisdictional Differences in Inheritance Law

The Jurisdictional Differences in Inheritance Law

As the title suggests, inheritance law deals with the right of survivors to inherit certain property. Inheritance law differs from state to state, thus they way property is distributed will depend on the laws of a particular jurisdiction. The large majority of states are divided into common law or community property jurisdictions. This affects how property is distributed at death. You can determine how the inheritance laws apply in your state by taking a closer look at these two legal standards.

Common Law and Inheritance

Common law marriages have one defining feature that affects the way inheritance is decided. In these states, an estate lawyer will advise that a surviving spouse does not have a statutory right to one-half of the decedent’s estate. This is because property acquired during a common law marriage is not automatically attributed to the married couple. Rather, the courts look to the ownership designation on the title of property, or trace the purchase funds to determine who is the true owner.

Yet, just because there is no automatic right to marital property doesn’t mean there are no protections. The majority of jurisdictions using the common law system still allow the surviving spouse to receive one-third of the decedent’s estate. The survivor can even claim this portion of the estate if the decedent’s will granted a smaller amount. Usually, the only way a decedent’s transfer of less than a third will stand is if the spouse signed an agreement accepting such a result.

A Look at Inheritance in a Community Property State

In a community property marriage, both spouses own a share of all the property acquired during marriage. It doesn’t make a difference whether the property was obtained by one spouse or the other. State law mandates that both spouses have the right to an equal share of marital property.

There are some situations where property obtained during marriage qualifies as separate property. For example, property owned prior to the marriage will remain the separate property of one of the parties. Likewise, property obtained through inheritance or as a gift (to one spouse only) will be treated as separate property.

However, each spouse has a half interest in the communal property in these jurisdictions. Therefore, when a spouse dies, the surviving partner is guaranteed a half of the estate. The remaining half (owned by the deceased spouse) can flow to the survivor by intestate succession, or a devise in a will. However, a community property state also allows a spouse to transfer his or her share of marital property upon death. In such a scenario, the surviving spouse would only receive his or her half share of the community property.

Additional Considerations

There are many considerations that come into play in inheritance law. For example, in some jurisdictions, children may not have a right to inherit anything from a deceased parent. However, such children may be protected through laws aimed at preventing erroneous omissions. To find out how inheritance law works in your state, contact an estate attorney. In Utah, an experienced attorney at Spencer Jensen is available to help. Contact the firm with any end of life law questions, or legal matters requiring a probate attorney.

Tags: common law, inheritance law, community property state

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