Posted Aug., 2007 Kurt R. Nilson, Esq.          |            CLICK HERE FOR MORE ARTICLES

Every state's intestate laws give some degree of consideration to children when calculating the distribution of an intestate estate. 

However, it is important to understand that these laws can only control the disposition of intestate property.  If a former spouse does not have any intestate property, these laws cannot direct any property to any person, even a child. 

One common method of avoiding intestacy is joint property ownership that causes a deceased owner's portion of the property to pass to the remaining joint owner or owners at the time of death.  A second, perhaps more direct, method of avoiding intestacy is ownership of a valid will.

Joint Property Ownership

Married couples typically own their property jointly in a manner known as "tenants by the entireties."  This is a unique form of ownership that can only be formed when both partners of a married couple own the same item of property together. 

The advantages of owning property as tenants by the entireties are great enough that most married couples own all of their significant assets together in this manner, if not all of their property.  One advantage of this type of ownership is that the property is generally exempt from attachment to satisfy a debt that is owed by just one of the spouses.  This derives from the historical perspective of a married couple as being just one person, which prevented the property from being divided in this manner.  

In that same regard, when one spouse dies all property that is owned with the other spouse as tenants by the entireties automatically belongs to the surviving spouse.  (Unmarried couples can own property together as 'joint tenants with the right of survivorship' in order to achieve the same transfer at death.  However, this type of ownership can be severed and does not provide protection against attachment.)

Outside of these advantages, most married couples simply own their property together for convenience.  For instance, a joint checking account allows either spouse to easily access the money.  Couples will also own major purchases together simply because it involves so much of their money, such as cars.

Wills

Although is it possible to be partially intestate with a valid will, if the former spouse has a valid will it would be very uncommon for his or her estate to have any intestate property.  The greatest majority of wills are drafted for the purpose of instructing who is to receive all the property that is owned at the time death.

Partial intestacy will only occur when an otherwise valid will directs the disposition of less than the entire estate or does not account for the death of every intended beneficiary. 

A will that only includes gifts of specific items can only control who receives those specific items, as named by the will.  For instance, a will that only says "I give my car to Jack and $500 to Chrissy" only controls the car and $500.  All property that is not named by the will (and doesn't have any other legal instructions, such as joint ownership with survivorship rights) is controlled by intestate laws.

Although this is possible, almost every valid will contains a 'residuary clause' that directs who is to own all assets that are owned at death and that can be controlled by the will.  (Again, this is generally all property that doesn't have any other legal instructions for ownership.)

Similarly, a will that does not account for a contingency may also create partial intestacy if that event actually occurs.  For instance, a will that grants 'Fifty percent of all my property to Charles and fifty percent of all my property to Sally or to the issue of either beneficiary who does not survive my death' may result in partial intestacy.

This language does not account for the possibility that either beneficiary may die without any surviving issue, making the gift to each beneficiary subject to the laws of intestacy if that event occurs.

In practice, most married couples that take the time to plan their estates by making wills do so for the purpose of ensuring that the surviving spouse is the beneficiary of everything the other spouse may own at the time of death.  Although these wills may or may not make specific gifts to other beneficiaries, they almost always have a residuary clause that grants all individually owned property to the surviving spouse.

Will contests may provide an heir with the right to seek a portion of a parent's estate, but the mere fact that a child is not provided with any of a deceased parent's estate is typically not sufficient basis for contesting a will. 

Every person is generally entitled to give away their property however they wish.  A parent's failure to make a gift to any child by his or her will is usually not enough to entitle that child to seek a portion of the estate through legal action.

Relevant State Law

Finally, even in those instances where the new spouse does not receive all of the deceased parent's property, a child's entitlement to any portion of the deceased parent's intestate estate is controlled by intestate laws of:

1) the state where the parent permanently resides at the time of death, and

2) the state where any real estate is located. 

Although all states give some consideration to the decedent's children when distributing an intestate parent's estate, the methods and the actual final amounts differ from state to state.

There are also certain states that always give the surviving spouse a minimum dollar value of the intestate estate, without any regard to who else is living, making the answer to this question further dependent upon the total value of the former spouse's intestate estate. 

For instance, Hawaii always gives the surviving spouse the first $100,000 of the intestate estate when he or she is not the parent of all the deceased spouse's children.  If the intestate estate is less than $100,000 the children simply do not receive any portion of the intestate estate.  As another example, Mississippi gives the deceased's surviving spouse and each child an equal share of the intestate estate, without any minimum to the surviving spouse and without any regard to the surviving spouse's parental relationship to the children.