In the USA do children have legal rights to a share of a parent’s property even if they are excluded in the last will and testament of their parents? Especially a child born out of wedlock?
Do they? But some jurisdictions prevent parents from alienating family property away from their descendants and I belong to one that although giving preference to children of marriage, never discriminated against other children to cut them out altogether. A crucial fact of English history and of all that came after it was that William the Bastard had as much right to the Duchy of Normandy as any heir born in wedlock.
IANAL. But I think the laws vary from state to state. Where I am, I think I was told that if they aren’t mentioned in the will, then they’re SOL.
You can specifically disinherit a child in a will in the U.S. (you cannot disinherit a spouse).
If you die with a will that does not give anything to children, the children are disinherited and receive nothing.
If you die without a will however, the children are normally automatic takers from your estate. There are various ways, used by different states, to divvy up the estate in the absence of a will.
There are some Supreme Court cases establishing the rights of children born out of wedlock to inherit, though; the states cannot have a system that treats legitimate and illegitimate child very differently without a very good reason.
Yes. You do have to specifically disinherit children in your will. Otherwise a child not mentioned can sue and argue it was just an oversight and they should share in the estate.
I live in Louisiana (where the Napoleonic code still lives on in a few areas-like inheritance), and my Louisiana lawyer explained to me that in this community property state once can’t completely disinherit a child or spouse. One can leave a very small amount of property to them, but not zero.
A friend of mines mother made a point of saying in her will that she was specifically leaving her son the sum of one dollar. No oversight possible with that!
And my lawyer advised me to specifically exclude my parents in my will, by stating that I had intentionally omitted them from my will, and that these omissions “were not occasioned by accident or mistake”.
The assumption was that they would pre-decease me, but the lawyer said not to put that reason in the will, since it might not be true, and could be used as ammunition for a challenge to the will.
Jerry Garcia’s will had a clause leaving one dollar to any children he had who weren’t named in the will. An acknowledgement, I suppose, that unknown individuals might come forward claiming to be his offspring.
Really? are you required to leave a certain portion of your estate to your spouse? how is it defined? and is it the same in all 50 states?
It’s called the “Elective share” or the “statutory share” – a spouse not named in the will can “elect” against the will and receive a share of the estate defined by state statute. It’s usually about 1/3 of the total estate. Note that a spouse who IS named in the will can usually still elect against the will if the statutory share would be greater.
The rules defining that percent of the share, and what assets go into the pool that the spouse can elect against, vary by state. I believe around 40 states have elective share laws. States that have total community property, consider them unnecessary, since the surviving spouse owns half of everything outright.