It's easy to assume that writing up a last will and testament is all it takes to guarantee that your assets will be distributed according to your wishes. And in most parts of the United States, that's basically correct. However, there are a handful of states that have a caveat in place that can intervene to ensure you and your partner will receive your fair share of property whenever either of you expire.
There is no one perfect system when it comes to inheritance; some may reflect a person's actual wishes in the event of an untimely death, while others may end up superseding what they had envisioned for their assets. There are three systems of inheritance laws in the U.S.; it's important to know which ones affect your state and, thus, your will.
Understanding Inheritance Laws
Inheritance laws are statutes and regulations that determine how individuals receive assets from the estate of a deceased family member. These laws ensure that beneficiaries can acquire some form of inheritance in the event that a will was never written or doesn't cover all of the deceased person's assets. In some cases, these laws also provide certain relatives with the right to claim an inheritance, which they can exercise regardless of the actual terms of the deceased's will.
In the context discussed here, inheritance laws typically pertain to the spouse/partner of the deceased individual. Few states grant children the right to inherit from their parents, outside of some specific circumstances where they will be entitled to claim a share of the deceased's property. Most states do have laws to protect against accidental disinheritance, should a will predate the birth of a child and fail to be revised before the death of the relative. That way if property isn't left for one child but is for their siblings, it's assumed this omission was accidental and the child in question will be given an equal share. In some jurisdictions, these laws can also apply to grandchildren.
When an individual passes away without a will, their estate is considered "in intestacy." This means that a court-appointed administrator will compile all of the deceased's assets, pay any debts and/or taxes, and distribute what remains to the beneficiaries based on the laws of their state. A will may also be considered intestate if it doesn't encompass all of the individual's assets. In either case, only the probate court with jurisdiction over the estate is responsible for distributing the deceased's assets
Make sure you know which of these three systems of inheritance law governs your state. Here's how each one works and might affect you.
The first type of inheritance law is what's known as community property. Under this system, each spouse automatically owns half of what they each earned while married. Ergo, when one person expires, half of their estate automatically goes to their partner, while the latter half may be distributed to other beneficiaries. Of course, this is only a minimum requirement. If a will has been written, the deceased has the option of reserving more than half of their assets for their spouse. The nine community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
For the purposes of inheritance, community property laws consider income received from employment, property bought during the marriage (with income from work), and separate property that a spouse gives to the marriage community (and therefore will be obliged to share with their spouse) as being "shared" between partners (i.e., going toward each of their "halves" should the other pass away). Property that doesn't apply to this policy includes anything acquired prior to the marriage, inheritances or gifts, and anything covered under an agreement between the spouses that's to be kept separate from the marriage community.
Thirty-eight of the remaining 41 states operate under common law policies. In the context of inheritance, spouses living in these states aren't automatically entitled to half of the assets obtained throughout the marriage. That said, many states will still give the surviving spouse the right to claim a third or even half of the deceased's estate, also regardless of the terms of the will. However, these provisions only apply if the surviving spouse petitions the court for their share. Under common law, the ownership of property is determined by the name on the title of the property or by whoever's income was used to purchased it.
Elective community property
Three states don't fit neatly into either of these two categories. Alaska, for instance, adopted an elective community property system in 1998. It's still effectively a common law state, but a spouse may also have an automatic right to an inheritance, so long as they sign a written agreement with their partner or create a community property trust together. Tennessee established a similar law in 2010, while Kentucky adopted its elective community property system in 2020. In each state, both residents and non-residents may create community property through a community property trust.
The Bottom Line
The last thing anyone would want to deal with while mourning is complications in the inheritance process. As such, even though it isn't fun to think about, it's crucial to ensure you have your affairs in order as soon as possible to avoid confusion and make sure that your will can be carried out as written. To that end, make certain you understand the inheritance laws of your state when planning for your estate. That will give you the best chance that your plan for your assets won't be overridden.