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Rights of a Surviving Family Member

Jun 18, 2020

What Are the Rights of the Decedent’s Surviving Family?

The decedent’s surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s will gives them nothing. Certain states have enacted laws that protect the decedent’s surviving spouse and certain surviving children from a total disinheritance.

For example, a surviving spouse may have the rights in the decedent’s homestead real property. A surviving spouse may also have the right to come forward to claim an “elective share” from the decedent’s probate estate. Generally, the elective share is thirty (30) percent of all of the decedent’s assets, including any assets that are non-probate assets. A surviving spouse and/or the decedent’s children also may have the right to family allowance to provide them with funds before final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate. It is important to note that a spouse may waive rights to an elective share, family allowance, and/or exempt property in a valid pre-marital or post-marital agreement.

Additionally, if the decedent married, or had children, after the date of the decedent’s last will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate. 

***The existence and enforcement of certain statutory rights requires knowledge about the applicable state laws and procedures, often best handled by an attorney.

 

What Rights Do Other Potential Beneficiaries Have in the Decedent’s Probate Estate?

Except as provided in the above-mentioned sections, a testator has the right to entirely disinherit anyone. It is not necessary to give the disinherited beneficiary a nominal gift (for example, $1.00).

 

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