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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
Charles and $500 to Lewis" 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.
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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.
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