Upon losing her husband, a surviving wife’s inheritance will be determined based on a combination of state law, the husband’s last will and testament, any pre-marital or post-marital agreements, title to property, and beneficiaries listed on any investment accounts, retirement accounts, and insurance policies.
However, barring exceptions (such as pre and post-nuptial agreements), every state in America prevents a spouse from entirely disinheriting their surviving spouse from at least some assets, no matter how long the couple has been estranged or how much the decedent wished to keep his wife from an inheritance. This guide will highlight what a surviving spouse may be entitled to upon their husband’s death and use a hypothetical scenario to illustrate how the inheritance process might look in practice.
Under the law, surviving spouses have inherent legal rights to some of their spouse’s assets when they pass away, even if they are not included in their estate planning documents. If there are any questions surrounding what assets a wife receives, a probate administration attorney or trust litigation attorney can be a valuable resource for ensuring she receives the assets she is entitled to.
Spouse Entitlement in Community Property States
Community property laws assume that any property acquired by either spouse during a marriage, including anything earned, bought with money earned, or debt taken while married, belongs equally to both spouses. Each spouse owns one-half of each item of community property—this is true regardless of which spouse earned or acquired the community property. An exclusion to this general rule is that inherited property, gifted property, or property generated from non-community or separate property (think income from a rental property owned prior to marriage) is not considered community property.
California and Texas are both community property states. This means that, in these and similar community property states, the surviving spouse will be entitled to at least one-half of any property or wealth accumulated during the marriage (i.e. community property), absent a pre-nuptial or post-nuptial agreement that states otherwise.
Spouse Entitlement in California
Because California is a community property state, the surviving spouse is entitled to one-half of the community property acquired during the marriage, regardless of which spouse acquired it. This can include cars, houses, rental properties, investment and bank accounts, pensions, and any other valuable personal property, like art or jewelry.
If there is a will or trust, assets will be distributed according to the terms outlined in that estate plan. If there is no estate plan, assets will be distributed according to California’s intestacy laws. Assets that can be transferred without a will or trust – often referred to as non-probate transfers – can include jointly held bank accounts, jointly titled property, and financial accounts or insurance policies with beneficiary designations, which will go to the surviving joint account holder or designated beneficiary, subject to any community property claim from the surviving spouse.
The surviving spouse also may have an interest in their deceased spouse’s separate property. The entitlement to separate property depends on how many children the deceased spouse had and other living heirs of the deceased spouse. Generally speaking, the surviving spouse may inherit up to one-half of their deceased spouse’s separate property under state intestacy laws, assuming there is no will or trust dictating a different distribution scheme.
For example, if the deceased spouse passed away without a will or trust and had one child, typically, that child would receive one-half of the deceased spouse’s separate property, and the surviving spouse would receive the other half. If the deceased spouse had two or more children, then one-third would go to the surviving spouse, and the other two-thirds would go to the children.
Spouse Entitlement in Texas
In Texas, under its succession laws, the surviving spouse automatically receives all community property and all separate personal property (e.g. jewelry, etc.). Separate real property (e.g. homes, rental properties, etc.) is split evenly between the surviving spouse and other potential heirs, like the deceased’s children, parents, or siblings..
To understand this distinction,real propertyis any immovable property, such as land or anything attached to the land.Personal propertyis essentially any other form of movable property or anything that can be owned except land.
Regardless of which state you’re in, if you’re a surviving spouse who is being told you are not going to receive your fair share of your deceased spouse’s estate either through a will, trust, intestacy, or other document, then you need to consult a probate litigation attorney who can help you determine and enforce your rights, which may include enforcing your community property interests, protecting your homestead interests, and even contesting a will, trust, or other distribution in court.
Spouse Entitlement in Practice
To illustrate how spouse entitlement works in practice, we’ll use the following hypothetical scenario to highlight potential challenges and possible legal mechanisms and outcomes.
We illustrate an example of spouse entitlement through the hypothetical case of Tim and Sarah in California. Tim is a successful entrepreneur who was previously married and has a daughter, Emily, from his first marriage. After the divorce, Tim set up a trust to ensure his assets would be managed for and distributed to Emily and his favorite charity—however, it did not include any provisions for a spouse because Tim did not have one.
Some years later, Tim met and eventually married Sarah, but he did failed to update his trust to include (or exclude) her as a beneficiary. He just assumed because he was married to Sarah she would be “taken care of.” Five years later, Tim unexpectedly passed away. Upon reviewing Tim’s estate planning documents, Sarah was surprised to discover Tim had not updated his estate plan to include her, although she believed she was entitled to a share of his estate because of their marriage.
Fortunately for Sarah, in California a spouse who is omitted from a pre-marriage will or trust can claim a share of the estate if:
- The trust or will was created before the marriage and was not updated after the marriage to include (or exclude) the new spouse.
- The trust does not explicitly state that it excludes future spouses.
Because Sarah met both criteria, she had a valid claim to her intestate share of the estate as an omitted spouse, which would entitle her to the couple’s community property and one-half of Tim’s separate property because he had one child, Emily, who, along with Tim’s favorite charity, will receive the other half of Tim’s separate property. Sarah then began the process of securing her share by engaging a probate estate litigation attorney to petition the court for her omitted spouse share.
How Is the Estate Distributed to a Wife When the Husband Dies?
How estate assets are distributed to a surviving spouse depends on a variety of factors, such as estate planning documents and state law.
Some of the factors that determine a surviving spouse’s inheritance include:
- State law
- The deceased spouse’s last will and testament
- The decedent spouse’s revocable living trust
- Any irrevocable trusts
- Retirement account beneficiary designations
- Pension plan beneficiary designations
- Payable-on-death or transfer-on-death account designations
- Insurance policy beneficiary designations
- Pre-nuptial agreements
- Post-nuptial agreements
- Any prior divorce agreements or orders
- Other estate planning documents
In some cases, a wife may receive everything when a husband dies. A classic example is when the husband dies without a trust or last will and testament and all of his property is community property obtained during his marriage to his wife. Similarly, a husband can choose to ensure his wife receives his entire estate when he passes, which can be accomplished via proper estate planning that expressly gives the estate to his wife.
If someone passes away without a will or trust, whatever estate assets that are not going to pass via non-probate transfer (e.g. joint bank accounts, jointly titled real property, designated beneficiary assets, etc.) most likely will be distributed according to the intestacy laws of their state of residence, which differ in every state.
In Tim and Sarah’s case, Tim did have a trust, but because Sarah was omitted from it, she had to seek assistance from the local probate court in the county in which they lived, which probate court follows state intestacy and other probate laws to determine her share of Tim’s estate.
The court is likely to find that Sarah has a valid claim to a share of Tim’s estate as his omitted spouse, because Tim failed to update his trust after their marriage. After reviewing evidence presented by Sarah’s attorney, the court likely would determine that she was entitled to a share of Tim’s estate, pursuant to California probate code and according to California intestacy laws.
Specifically, Sarah was awarded the following:
- The entirety of community property acquired during their marriage
- A share of Tim’s separate property, determined by the number of surviving children. Since Tim had one child, Emily, Sarah was entitled to half of the separate property, and Emily and Tim’s favorite charity were entitled to the remaining half.
Keep in mind that every case is different, and these are complex factual and legal issues that should be handled with the assistance of an experienced probate litigation attorney. If you are facing a situation where you have questions about your rights to property or need to seek safeguards for your estate interests, contact an attorney as soon as possible.
What Are the First Steps To Take When a Spouse Dies?
Experiencing the death of a spouse is incredibly difficult. However, one way to ease the pain and uncertainty is to have a partner in the administration process who can explain your rights and obligations, answer your questions, hold your hand and guide you through the process to ensure everything goes smoothly and you receive your rightful share.
As soon as you are able, the first thing you should do after your spouse dies is:
- Locate any estate planning documents– These might include their most recent last will and testament, any trust documents, deeds and other property documents, records of payable-upon-death accounts, insurance policies, etc. If you cannot locate documents, your probate lawyer can help you determine where else to look and whom to contact to locate the documents needed.
- Contact an estate litigation lawyer if necessary—If you think disputes will likely arise among your deceased spouse’s children, parents, siblings, other heirs, business partners, or other third parties, you should contact an estate litigation lawyer who can address your concerns and ensure you are protected.
In Sarah’s case from above, because she was omitted from Tim’s estate planning documents, she took the following steps after Tim’s death to protect her interests in his estate:
- Sarah sought out and retained an experienced probate attorney to represent her in claiming her share of the estate.
- Sarah’s attorney petitioned the probate court for an order recognizing her as an omitted spouse and determining her share of Tim’s estate.
- Her attorney presented evidence showing that the trust was created before their marriage and had not been updated since the marriage, and that the trust did not have any provisions excluding future spouses.
In any case, the sooner you retain a lawyer, the better, so you can understand your rights and obligations and learn the next steps you need to take to ensure the estate is administered properly so you can receive your rightful inheritance.
What Rights Does a Surviving Spouse Have to Social Security Benefits?
Real and personal property assets are not the only benefits a surviving spouse can receive from their deceased loved one’s estate. If a deceased individual was receiving social security benefits at the time of their death, a surviving spouse does have rights to their benefits. Social Security benefit amounts vary depending on how much the individual paid into the program over their lifetime. Still, regardless of the amount, surviving spouses are entitled to a percentage of their partner’s earnings.
The Social Security Administration outlines the following distribution amounts for surviving spouses:
- A spouse at full retirement age or older will receive 100% of the deceased worker’s benefit amount.
- A spouse between the age 60 and full retirement age will receive 71.5% to 99% of the worker’s benefit amount.
- A spouse with a disability between 50 and 59 will receive 71.5% of the benefit amount.
A spouse at any age caring for a child under age 16 will receive 75% of the benefit amount.
There are limits to what benefits a surviving spouse may receive. For example, if a surviving spouse remarries before age 60, they will no longer be entitled to benefits. If the surviving spouse also receives a pension, the amount they receive from social security may change.
Of course, each case is unique, so it’s important to discuss your situation with an experienced probate attorney to understand the full scope of your rights.
Widow’s Rights to Husband’s Property
A surviving spouse’s rights to a husband’s property depend most on the types of property the husband owned, when it was acquired, and what terms are outlined in any estate planning and pre or post-marital documents.
As mentioned above, a widow’s rights to property depend on several circ*mstances. Suppose a decedent leaves a will or trust that designates specific property to be distributed to other beneficiaries, such as children or siblings. In that case, the surviving spouse may have to yield to these wishes.
In community property states, surviving spouses have fundamental rights to specific forms of property. Any community property should be completely and automatically distributed to the surviving spouse, whereas separate real property is often split evenly between the spouse and other beneficiaries. Disputes often arise over the characterization of property as community or separate, and when these disputes arise you would be well-advised to engage probate litigation counsel to advise you on how best to protect your interests.
Despite the different requirements, every case has its own unique circ*mstances and family dynamics, so it’s valuable to consult a probate estate attorney in the process. A probate attorney can support a widow in navigating legal processes, provide guidance through any disputes, and ensure they can secure their rightful access to a husband’s property.
Who Inherits the Decedent’s House?
Like other property, the distribution of the home after a husband passes depends on the terms outlined in the will or trust documents, deed and any applicable state laws.
In Texas, real property is split down the middle between the surviving spouse and other beneficiaries. This means that the value of any land or physical property connected to the land is split 50/50 between the spouse and any other beneficiaries or heirs unless the interested parties come to a separate agreement that allows the surviving spouse to remain in the home. However, if the house was acquired during marriage, it will be considered community property and be distributed to the surviving spouse.
Meanwhile, in California, if a decedent leaves behind a house and there is no will or trust, and the house was acquired during marriage, the surviving spouse likely has a claim to inherit the entirety of the property if it is determined to be community property. Like in Texas, if the house was acquired during marriage, it is considered community property, and full ownership will transfer to the surviving spouse. If the house was acquired by the decedent prior to marriage, it is considered separate property and the spouse may have to share it with the decedent’s issue, unless otherwise specified in the deed or estate planning documents.
Accessing Bank Accounts as a Surviving Spouse
When a spouse passes, accessing a deceased spouse’s bank account can be a challenge. If both spouses had a joint account, the surviving spouse can often claim full ownership. However, if a surviving spouse is not listed on the deceased spouse’s bank account, they may face a challenge attempting to access the funds.
Banks usually have beneficiary rules that allow designated payable-on-death beneficiaries to access funds. If a spouse is listed as a beneficiary, they must present a death certificate and appropriate identification to obtain access. If there was no beneficiary to the account, the funds in the bank account will go to probate and these assets will be considered as part of the personal property encompassed in the decedent’s estate.
In instances where a surviving spouse is struggling to access bank accounts belonging to their deceased spouse, they may seek legal assistance. A probate estate lawyer can help identify legal avenues for accessing these accounts by establishing the rights of the surviving spouse and using the resources at hand.
Additional Benefits Available to a Surviving Spouse
It can be difficult to determine and understand what benefits and rights exist for surviving spouses. A surviving spouse may be entitled to additional benefits past what asset distribution is outlined in the estate planning documents.
Some of the benefits available to a surviving spouse include:
- Family allowance– When a deceased spouse is the primary income driver for a family, the surviving dependents may petition the court for a family allowance, which provides family members with financial support for a designated period of time following the event.
- Temporary possession of the family home– Temporary possession of a family home is immediately granted to the surviving spouse by the court before the probate process begins so that they have a place to reside until assets are officially transferred.
- Probate homestead set-aside– If a surviving spouse is at risk of losing the family home, the court may allow a homestead that authorizes the spouse and any children to remain on the property for a designated period of time.
In addition to the above benefits, surviving spouses may have rights to benefits like the decedent’s retirement plans and pensions. Surviving spouses are also often listed as beneficiaries on life insurance policies, which entitles them to a payout of these benefits if applicable.
Surviving spouses who are uncertain about what benefits are available to them should consult a probate estate attorney. An experienced attorney will support a surviving spouse in pursuing all the potential avenues available to them.
Secure Your Rights and Inheritance Today
When a spouse passes away, the surviving spouse has several unique rights to assets and inheritances. In community property states like California and Texas, spouses have designated rights to specified assets.
You can start taking key steps to secure your inheritance by locating any estate planning documents and seeking legal counsel. If you are unsure of your rights or are concerned about another interested party threatening these rights, you should contact a probate litigation attorney as soon as possible.
At RMO Lawyers, we are here to support clients in a variety of probate matters. We take a compassionate approach to each case, taking the time to listen carefully to each of our clients and understand the full scope of their situation. From there, we help you understand your options and work with you to determine the best possible pathway so you can secure your access to your rightful inheritance.
Schedule a consultationto speak with our team and learn more about your legal options and rights to secure your inheritance.
RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visitRMO Lawyers.
