Posted November 3, 2020 by Will Harnish
You are technically right: You don’t need an estate plan. If you die without one, your property may get tied up for a while, but state law has cumbersome processes in place that should eventually get property distributed from your estate. However, who your heirs are (and if they get anything) are up to state statute.
Typically, an estate plan is nice because you choose what happens with your stuff. If you don’t like your middle child, you can disown them. If you want everything to go to your brother, you can plan for that.
But some people just don’t want to go through the hassle of getting an estate plan in place. You have to find an attorney you trust; gather all the information you typically keep private (not just balance sheets and financials, but how you really feel about your kids and grandchildren); arrange several meetings to talk in-depth about these private things; learn about planning tools you have never heard of; dwell on thoughts of your own potential incapacity and eventual death; and myriad other considerations. It’s a lot.
In this blog, I will briefly cover what a surviving spouse can expect from the intestate property passing from the estate of a deceased spouse. My next blog will focus on others that could benefit from a decedent’s intestate estate.
Basic Spousal Rules
The general rule is that if one spouse dies and property is held in the decedent’s intestate estate, then all property passes to the surviving spouse. This, however, is only if 1) there are no children, or 2) any children surviving the decedent are also the children of the surviving spouse.
If the decedent left descendants that are not descendants of the surviving spouse (stepchildren; step-grandchildren), then the surviving spouse is entitled to the first $75,000, plus one-half of the remaining balance of the intestate estate.
Consider the following simplistic examples where we assume everyone died intestate:
- Pat and Leslie never had children. Pat dies. Leslie gets all the property.
- Pat and Leslie had children. Pat dies and is survived by Leslie and the children. Leslie gets all the property.
- Pat and Leslie had children, but the children died prior to their parents and left grandchildren. Pat dies. Leslie gets all the property.
- Jac and Jules were previously married. Neither had children before the current marriage. Regardless of whether they have children together, if Jules dies first, the same rules apply as if it were a first marriage.
- Jac has one child and marries Jules, who has no children. They do not have any children together. Jules dies leaving Jac and Jac’s child. Jac gets all the property.
- Jac has no children and marries Jules, who has one child. They do not have any children together. Jules dies leaving Jac with Jules’s child. Jac gets the first $75,000 and half of Jules’s remaining intestate estate. The other half is given to Jules’s child.
- Jac has one child and marries Jules, who has one child. They do not have any children together. Jules dies. Jac gets the first $75,000 and half of Jules’s remaining intestate estate. The other half is given to Jules’s child.
These examples don’t take every situation into consideration – for instance, what if Jac and Jules had children together? – and an attorney should be consulted if you have any questions regarding your own family.
One final point to make is that a divorce is presumed to completely sever the right of a former spouse to claim intestate property. The other side of this, however, is that a divorce is not final until a divorce decree has been issued by the court. As such, if you die merely separated from your spouse, or if you die while in the middle of a divorce, your spouse can still claim their intestate share.
The intestate process is great in that it ensures that your property isn’t endlessly stuck in limbo, but it can also get confusing. Consult with an attorney if you have any questions.
And be on the look-out for Part 2 of this blog where I will discuss distributions from the intestate estate to people other than a surviving spouse.
Posted in Estate Planning, Wills, and Trusts.