A child's spouse is not classified as
an heir according the intestacy laws of any state. When
a child inherits a portion of a parent's intestate
estate, the inherited property belongs solely to the
child. The child's ownership is the same as though the
parent had given that property to the child while still
This sole ownership is not changed by
marriage, whether the child is married before or after
receiving the property. Again, just as with
property that is received as a gift, the child is not
legally obligated to share any portion of that property
with his or her spouse.
Even those states that have community
or marital property laws generally exclude any property
that is inherited by either spouse in an individual
capacity from inclusion with the remainder of the
community or marital estate. (However, the
appreciated value of all such property during the time
of marriage will generally be included as community or
marital property and subject to division.)
With that said, it is still possible
for your child's spouse to receive a portion of your
intestate estate under certain, specific circumstances.
Child's Subsequent Death
Each state has a minimum time period
that an heir must survive beyond the deceased's date of
death in order to receive his or her share of the
intestate estate. This minimum time period is
typically around five days.
If an heir lives for the required
minimum time period, that heir receives any share of the
intestate estate that he or she is entitled to under the
appropriate laws of intestacy.
This is true even when the heir dies
prior to the actual distribution of the estate.
Although the minimum survival period is an average of
five days, it takes much longer for any property from
the intestate estate to be distributed to the heirs.
The share of an heir who dies after
the minimum survival period, but before distribution of
the estate, will simply be given to the deceased heir's
Once it becomes part of the deceased
heir's estate, the original intestate share will be
controlled by that heir's will or, in the absence of a
will, by an interpretation of the intestate laws
applicable to that deceased heir.
In the typical scenario, the
daughter-in-law or son-in-law will receive all or most
of the intestate share intended for a child who
initially survives, but dies soon after the parent.
Every state's intestate laws classify the spouse as a
primary heir who is entitled to at least a portion of
the deceased spouse's intestate estate. If the
deceased child has a will, it is very common for most
people to name the spouse as the sole heir, entitled to
the entire estate.
For instance, New Jersey requires
each heir to survive the deceased by at least 120 hours
in order to receive his or her share of the intestate
estate (unless this requirement would cause the property
Suppose a widowed New Jersey resident
has a $500,000 intestate estate and two living children,
Stanley and Oliver. At the time of their mother's
death, Stanley and Oliver are also New Jersey residents
and are each married with two children.
According to New Jersey's intestate
laws, each son receives an equal share of their mother's
$500,000 intestate estate.
Although he is living at the time of
his mother's death, Stan unexpectedly dies one month
later and his mother's estate is distributed eleven
months later. Despite the fact that he is
not living when the estate is distributed, the $250,000
share still belongs to Stanley because he survived his
mother for a time period greater than the required 120
hours after the date of her death.
When the estate is distributed to the
heirs, Stan's $250,000 will simply be paid to his
estate. Once it is part of Stan's estate the
intestate share will be distributed according to New
Jersey's intestate laws, but with reference to Stan.
It may also be important to note that Stan's death will
not affect Oliver's share and he will still receive his
$250,000 in full.
Of Stan's $250,000 share, the least
his spouse will receive under New Jersey's intestate
laws is $156,250 and she may receive the entire amount.
If she is the parent of both his children and does not
have any children of her own by someone other than Stan,
New Jersey law will grant the entire $250,000 share to
her as the surviving spouse.
Of course, if Stanley is a resident
of any other state, his intestate estate's apportionment
will be controlled by that state's intestacy laws.
(If you're curious about how your state laws will divide
your intestate estate, open the
for your state.)
Many people would not be concerned
with their estate property being given to a child's
spouse in these circumstances. Many other people
would prefer to have their property given to the
grandchildren, rather than the child's spouse.
Once it is received, the child's
surviving spouse can use the child's the property
however he or she wishes. Although the property
was received through the deceased spouse's family, the
surviving spouse does not have any obligation to use
that property for the benefit of the deceased spouse's
As one method to protect against this
situation, a parent can very easily draft a will that 1)
extends the length time required for survival, and 2)
names the grandchildren as alternate beneficiaries.
Although this provides some
protection, most wills extend the survival period to a
time period of about one month. If the intended
beneficiary dies at any time after the one month period,
it will result in the same outcome as above.
Another method that provides even
greater protection is placing the property into a trust
that names the child as a primary beneficiary while
living, followed by the grandchildren at the time of the
child's death. The property can be placed into
this trust while the parent is living or the parent can
draft a will that creates a trust for this property.