Understanding Inheritance Rights and Provisions

At Goldberg & Goldberg, we want to ensure you understand that certain immediate family members, such as your spouse and possibly your children or grandchildren, may have legal entitlements to your estate. This is true even if you have detailed other wishes in your will. Here’s an overview of the entitlements these close relatives may have:

The law typically protects a surviving spouse from being entirely excluded from a will, safeguarding their right to inheritance in many circumstances.

Rules in Community Property States

In community property states, which include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, spousal rights to property are particularly defined. Spouses generally own an equal half of all earnings from during the marriage unless they’ve stipulated otherwise in a legally-recognized agreement. Spouses have full control over their half of the community property and any personal property they possess.

Inheritance in Non-Community Property States

Outside of community property jurisdictions, assets acquired during marriage aren’t automatically co-owned. However, to prevent disinheritance of a spouse, most states provide for the surviving spouse to claim one-third to one-half of the deceased partner’s estate, regardless of the will’s contents. Depending on the location and duration of the marriage, the exact portion that can be claimed varies.

To assert these rights, the surviving spouse must legally challenge the will in court. If the surviving spouse does not dispute the will, the provisions of the will generally stand as is.


Consider Johanna, who bequeathed $80,000 to her fourth husband, Fred, and distributed her remaining assets, worth nearly $500,000, among her sons from earlier marriages. Fred can either accept this or opt to seek a larger portion by making a legal claim on Johanna’s estate, which may result in a significant increase in his inheritance, affecting the distributable amount to Johanna’s sons.

To prevent such issues, we at Goldberg & Goldberg advise consulting a legal professional if you intend to leave less than half to your spouse or if your spouse has not agreed in writing to your estate plans.

The Impact of Divorce on Inheritance Plans

Divorce generally nullifies any bequests made to an ex-spouse in a will. To ensure clarity, it is advisable to draft a fresh will upon divorce that explicitly excludes the previous spouse.

Understanding Children’s Inheritance Rights

Typically, children do not possess an inherent right to their parents’ assets. However, certain circumstances, like those present in Florida’s protections for minor children regarding the family residence, may grant children an entitlement to portions of a deceased parent’s estate.

States often have provisions in place to prevent unintentional disinheritance—for instance, if a parent neglects to update their will to include a child born after the will’s creation. In such cases, the law assumes the parent did not wish to exclude the newest addition to the family and may allow this child to inherit a fair segment of the assets.

This protective measure extends, in some states, to grandchildren of a predeceased child, as well. If you wish to specifically disinherit a child, or grandchild of a deceased child, it’s imperative that your intention is directly expressed in your will. Furthermore, the birth of any new children should prompt a prompt revision to your existing will.

For a personalized and confidential consultation to address any questions or concerns you may have regarding inheritance rights, please contact Goldberg & Goldberg at (301) 654-5757. Our experienced attorneys are readily available to guide you with legal insights and ensure your estate planning reflects your desires. Remember, we offer a Free Consultation to support you in these crucial decisions.

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