Opening Hours / Monday – Friday / 08:00 – 18:00

Call us now: (801) 618-0699

Do Children Have A Right To Inherit?

State intestacy laws define the rights of inheritance if there is no valid will. But there are other state laws as well that may give a surviving spouse, children, and even grandchildren a legal right to claim an inheritance. This right may apply even if they were not named in your last will.

Talk with an estate planning attorney in your state to understand how state inheritance laws may impact your estate plan. This will be especially important if you choose to exclude a family member from your will or trust.

Inheritance Rights of a Surviving Spouse

A spouse’s rights to inherit their deceased spouse’s estate will depend upon what was written in the will, whether they live in a “community property” or “common law” state, and whether they are willing to press for their rights in probate court.

Community Property

In a community property state, assets acquired by either spouse during the marriage are considered to be jointly owned by both spouses. Each spouse owns a one-half interest. Marital assets include income received by either party from work and property bought during the marriage with income from employment. It may include separate property that a spouse brought into the marriage if it was converted for use by both spouses. Spouses have a right to dispose of their share of community property in whatever way they desire (unless a provision in a prenuptial agreement states otherwise). For example, a deceased spouse could leave his or her half of the family home to someone other than the surviving spouse. But the deceased spouse can’t give away the other spouse’s share of or right to use community property.

What Is Not Community Property?

Even in a community property state, a spouse may own some property as separate property if:

  • They acquired it as an inheritance or a gift and kept it separate.
  • They acquired it prior to marriage and did not convert it to joint use.
  • The spouses agreed to keep some real property as separate property.

A spouse has the sole right to dispose of their separate property. A deceased spouse can distribute both their separate property and their share of community property in a will.

Inheritance Law in Common Law States

All states that are not community property states are common law states. In a common law state, ownership is determined by whose name is on the title (for real estate, or a car, for example). If only one spouse’s name is on the deed of a home, that spouse owns the home, even if the other spouse actually paid for it.

If title doesn’t apply to the type of personal property in question, then ownership is determined by who purchased the property. A spouse is not automatically entitled to a one-half interest in property acquired during the marriage. Does this mean a surviving spouse has no inheritance rights? Not necessarily.

Most common law states protect a surviving spouse from complete disinheritance with an inheritance law that allows them to claim one-third to one-half of the decedent’s property. In some states, the amount a spouse can inherit increases with the number of years of the marriage.

A spouse can choose to leave less than their state’s inheritance law allows, but the surviving spouse could then go to court to claim they should receive a higher amount. If the surviving spouse agrees to accept a lesser amount or never challenges the inheritance in court, then the terms of the will apply.

Transferring Home Ownership Outside of a Will or Trust

When it comes to transferring ownership of a home or real estate after death, this can also be accomplished with the property title, such as joint tenancy or tenants in common. With joint tenancy with a right of survivorship, when one owner dies, the surviving owner receives 100% ownership of the property. They need only file a death certificate and an affidavit of surviving joint tenant with their county clerk.

Changing the deed to reflect joint tenancy can be done at any time while the parties are both alive. And the shared tenant does not have to be a spouse. It could be a child or a sibling, or another party. As tenants in common, both parties own a property but neither of them has a right to the other person’s share of the property after death. The deceased person’s share of the property is distributed either in accordance with their will (or trust) or, if there is no will, to their heirs according to state inheritance law.

Let’s say, for example, that an unmarried couple owned a home as tenants in common. One partner dies. The remaining partner continues to own one-half of the property. The deceased partner’s children may then have a right to inherit the other half share of the property. The new heirs will need to gain title to the property in the probate process.

Inheritance Rights of a Spouse after Divorce

In most states, once a divorce becomes final the bequests made in the will to the ex-spouse prior to the divorce are automatically revoked. In some states, divorce has no effect on bequests to an ex-spouse. If you want to ensure that your ex-spouse does or does not inherit, it’s best to draft a new will after the divorce becomes final.

Inheritance Rights of Adult and Minor Children

Unlike a spouse, an adult child generally has no legally protected right to inherit a deceased parent’s property under state intestate succession laws. Some states, do offer some protection to minor children. Most states do protect adult and minor children from being unintentionally omitted from a will. It’s easy to see how that can happen. Parents write a will after the birth of their first child, but then forget to revise their will after they have a second child. They didn’t mean to disinherit that child; they simply forgot.

The law presumes that such omissions are accidental when the birth of a child occurs after the creation of the will. The omitted child may inherit some portion of the decedent’s estate. If the omission was intentional, though, and the parent(s) wanted to disinherit a child, this should be specifically stated in the estate planning documents.

Inheritance Rights of Grandchildren

In general, grandchildren do not have a legal right to inherit property from a grandparent. In some states, if the parent of the grandchild is deceased, the grandchild may have a right to inherit if the will does not contain an express statement of the intent to disinherit the grandchild.

Children's Right to Inherit

Generally, children have no right to inherit anything from their parents. In certain limited circumstances, however, children may be entitled to claim a share of a deceased parent’s property.

Most states do have laws to protect against accidental disinheritance. These laws usually kick in if a child is born after the parent made a will that leaves property to siblings, and the parent never revises the will to include that child. The law presumes that the parent didn’t intend to freeze out the newest child, but just didn’t get around to revising the will. In that situation, the overlooked child may have a right to a significant part of the parent’s assets.

In some states, these laws apply not only to children, but also to any grandchildren of a child who has died. If you decide to disinherit a child, or the child of a deceased child, your will should clearly state your intention. And if you have a new child after you’ve made your will, remember to make a new will.

The Death Tax/The Inheritance Tax Law

More commonly, this so called inheritance tax law is known as the “death tax”. This is for the sole reason that it is levied on the entire estate wealth and properties after the rightful owner dies. These riches, May it be a portion or the whole lot, in turn, is left to another individual. There are diversities on the imposition of this tax in different states. On the contrary, there are also states that instead of the latter, they entail inheritance tax. Due to the reason that there are varieties on the imposition of the taxes, it is also the responsibility of every citizen to get to know the current inheritance tax law being imposed on his state. It is a must that everyone must know or at least have an idea of the law of the land. Lack of knowledge of the law will not excuse anybody from conformity with it. There is also, of course, another choice which is to hire a lawyer expert on tax laws.

State's Requisite on Tax Payment Estate

In this light, every citizen must be updated with the recent changes in the state’s requisites regarding the tax payment scheme on estate. The big question now again is why? This is due to the fact that several states constantly revise their laws and a few are as a matter of fact, thinking of abolishing the inheritance tax which is good news to all. This is the prime reason that the tax payers and even the lawyers are always spotting the trend on the inheritance tax laws.

There are various considerations on the levying of the taxes which depends on the degree of relationship of the family member to the deceased. Usually, the tax levied on the family member who is closer in degree to the deceased has lesser tax obligation as compared to the friend or only a far-off next of kin. The family inter connection is considered by the law for a good reason especially if the one who will inherit is the father, mother, brother, sister, children and the spouse of the deceased.

Filing for Inheritance Tax Law

Now, you might wonder how this inheritance tax law is being filed. Simply acquire and accomplish all the needed data in the form that could be acquired in the taxation offices of the state. Additionally, due to the recent modernization, these forms could also be accessed through the internet plus you could also utilize the contact data on your previous state tax return. Remember that ample knowledge is needed in order to supplement the demands to the society. Therefore, be in compliance with the inheritance tax law depending on your state. Whether a child has the right to inherit depends primarily on whether the deceased parent has a valid will or not. With a will, the testator determines how they want probate assets handled. Without a will, state laws of intestacy govern.

Dying with a Will

Generally, a person has the right to dispose of his or her property as the individual sees fit without having to consider any existing duty to provide for a child. While there are specific laws regarding community property or a share that a spouse is entitled to if he or she is not satisfied with the provisions in the will, there are fewer rules regarding children. For the most part, parents can intentionally exclude children from an inheritance and the personal representative and the judge must respect this decision. However, like with most laws, there are exceptions.

After-Born Children

States generally have laws that protect children who have been unintentionally omitted. Probate laws usually allow a child to have an equal share as the other children if he or she was born after the will was written. Similarly, probate laws often protect children that have not yet been born but who are in gestation when the parent dies.


If a parent wishes to disinherit a child, the probate laws of his or her state may require that this preference be clearly stated in the will. Illegitimate children generally do not have as much protection in this regard as their legitimate counterparts. However, to avoid issues of after-born children, the testator may wish to expressly disinherit illegitimate children if that is his or her preference.

Invalidating the Will

Children who believe that they were supposed to receive a share of the decedent’s estate may receive such a share if they are successful in invalidating a will. Even if a will was written, if the court finds that it is not valid, the terms of the will are ignored. Then, the laws of intestacy which are generally more favorable to children’s rights to inherit apply. There are several reasons why a will may be invalidated. It may not have been executed in accordance with state probate laws, such as lacking a proper number of witnesses. The court may find that the will was a product of undue influence in which a person convinced the testator to provide more to a caregiver or other individual. A will can also be invalidated if the moving party shows that the testator did not have the legal capacity to know what he or she is doing.

Right to Support

Some jurisdictions require the estate to provide reasonable support to children while the probate case is pending or to live in the family home until they reach the age of majority. This rule may not apply if the children’s parent receives everything under the will.

Dying without a Valid Will

When a person dies without a valid will, the state laws of intestacy apply. These laws determine who stands to inherit, based on their relationship to the decedent. They also dictate how much of a share of the probate estate each heir is entitled to receive.

Surviving Spouse

If there is a surviving spouse, the children and the spouse often split the probate estate. The spouse may receive up to one-half of the estate with the children receiving the other one-half. However, some states only provide the surviving spouse with a small percentage of the estate that increases based on the number of years the spouse and decedent were married.

No Surviving Spouse

If there is no surviving spouse, the children generally inherit the entirety of the estate. If the decedent had some surviving children and some children who predeceased him, the grandchildren are usually entitled to a share.

Free Initial Consultation