On behalf of Sayer Regan & Thayer of Sayer Regan & Thayer, LLP posted on Monday, November 8, 2022.
If you are married but don’t have a will, you may wonder: Does my spouse automatically inherit all my real estate in the event I die? You may assume this to be true, but that’s not always the case.
If you die without a valid will in place, this is known as dying intestate. Essentially, rather than your assets being divided according to your wishes, they will be distributed according to state intestacy laws. Neglecting to create a will can put your wealth and possessions at the mercy of state law. Neglecting to put both names on the real estate deeds you own together could also mean one or the other has no rights to the property once one party dies. Having a strong estate plan in place can avoid all that.
Many states have rules saying property acquired in marriage is owned by both spouses, with each person owning half. Other states don’t have these equal ownership rules, but in an effort to protect spouses from getting disinherited, most states allow a surviving spouse the right to claim one-third to one-half of their deceased spouse’s estate.
Knowing who will inherit what will depend on several factors, such as:
• How your property is titled: Is your property solely in your name, in joint names with a spouse, or in joint names with a child? Have you designated a beneficiary? Are both spousal names on the deed? It’s important to know how your property is titled in order to understand who will inherit it when you die. Let’s say your home is titled in joint names, with rights of survivorship with a spouse. In this case, your spouse will inherit the family home. But if it’s in your name alone, it’s not a given that your spouse will inherit the home in terms of applicable state laws.
• The presence of a prenuptial or postnuptial agreement: You can legally waive the right to inherit real estate from your spouse when you create a valid agreement that is signed prior to marriage (prenuptial agreement), or after (postnuptial agreement). Both parties may agree to waive only certain inheritance rights — say, the right to inherit your 401(k) or IRA.
• Your state’s intestacy laws: In many states, the surviving spouse has to divide the estate with their deceased spouse’s kids if there any; otherwise, they have to divide it with the deceased spouse’s siblings or parents. As you can imagine, the conflicting desires that come with real estate (who wants to keep it, who wants to sell it) can get dicey and lead to family feuds.
If you do not have a will and have a surviving spouse and children, the estate would be split between the two, with percentages and amounts depending on the state. If you are survived by a spouse and no children, the spouse would get most of the probate real estate, with the balance being distributed to your living parent or parents. If you have children and no spouse, your kids would get everything. If there are no kids or spouse, your surviving parents would inherit the real estate. If your parents aren’t living, it would go to your siblings.
Contact Sayer, Regan & Thayer LLP for Rhode Island Real Estate Law
It’s vitally important that you have a last will and testament crafted by an estate planning attorney so that your wishes are followed to the letter of the law when you die. This will also allow your loved ones to avoid lengthy and expensive probate so they can receive your property in a timely manner. Please contact us toll free at 866-378-5836 for a free, no-obligation consultation.
These materials have been prepared by SRT for informational purposes only and are not intended and should not be construed as legal advice.