Family Members' Right to Inherit

Only the closest relatives have a right to claim part of your estate.

Only very close relatives -- surviving spouses, children, or children of a deceased child -- ever have the right to claim an inheritance from a deceased relative.

A Spouse's Right to Inherit

In most circumstances, a surviving spouse cannot be completely cut out.

Community property states

The community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin; in Alaska, spouses can sign an agreement creating community property) have their own rules about what spouses own and can claim. Basically, each spouse automatically owns half of what either one earned during the marriage, unless they have a written agreement to the contrary. Each spouse can do whatever he or she likes with that half-share of the community property and with his or her separate property. (For help sorting out what's community property and what's separate property, see Special Property Rules for Married People.)

Other states

In all other states, there is no rule that property acquired during marriage is owned by both spouses. To protect spouses from being disinherited, most of these states give a surviving spouse the right to claim 1/4 to 1/2 of the deceased spouse's estate, no matter what the will provides. But these provisions kick in only if the survivor goes to court and claims the share allowed by law. If a surviving spouse doesn't object to receiving less, the will is honored as written.

Example:

Johanna's will leaves $80,000 to her fourth husband, Fred, and divides the rest of her property, totaling almost $500,000, among her three sons from previous marriages. If Fred is happy with his inheritance, everything will go according to Johanna's plan. But if Fred wants more, he can claim a share of Johanna's estate -- and get substantially more than $80,000. If he does, Johanna's three sons will take what's left.

If you don't plan to leave at least half of your property to your spouse in your will and have not provided for him or her generously outside your will, you should consult a lawyer -- unless your spouse willingly consents in writing to your plan.

Ex-Spouses' Rights

In most states, getting divorced automatically revokes gifts made to a former spouse in your will. But to be on the safe side, if you get divorced, make a new will that revokes the old one. Then you can simply leave your former spouse out of your new will.

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. For example, the Florida constitution prohibits the head of a family from leaving his or her residence to anyone other than a spouse or minor child if either is alive.

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 will left 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 by 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.