Legal Rights of a Surviving Spouse

By Beverly Bird
All states but Georgia protect a surviving spouse's rights.

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The act of marriage preserves a spouse's right to the estate of her partner if he passes away. As of 2010, Georgia was the only state in the country that did not protect surviving spouses with specific legislation. Everywhere else, a spouse is entitled to certain benefits whether her partner left a will or not.

Disinheritance

Forty-nine states and the District of Columbia will not allow anyone to disinherit her spouse and leave him out of her will. If you try, the law will intercede to make sure he gets something. These states give spouses the right to make a claim with the probate court for a share of the deceased's estate, called an elective share. Only Georgia does not have provisions in its legislation for elective shares.

Elective Shares

An elective share, also called a statutory share, overrides a will if the testator, or the person who made it, left his spouse nothing or only a negligible amount. The share is the portion of the testator's estate that state law sets aside for a surviving spouse, and it ranges from a third to a full half, depending on where you live and whether or not you had children together. If a spouse leaves his wife only a quarter of his estate, she can go to probate court and make a claim for her elective share instead. She does not get to inherit both the 25 percent willed to her and the elective share. She opts to take the larger portion instead.

Intestacy Rights

Each state also has intestacy laws, or an order of succession for heirs to inherit when someone dies without leaving a will. Generally, the surviving spouse is the first in line to inherit his wife's property. If they had children together, he would have to share some of the estate with them. If she had children from a previous relationship, he would have to share with them as well. Real estate generally goes to the children, but if it is the home the spouse has been living in, state laws usually provide that she has a life estate, meaning that she can keep possession of it and continue living there until she dies as well. Then it would pass to the testator's children.

Community Property States

In community property states, each spouse owns one half of everything purchased, earned or acquired while they were married, with a few exceptions, such as inheritances and personal injury settlements. In these states, a spouse can only bequeath his one-half share of marital property in his will. When he dies, with or without a will, half of all marital property automatically reverts to his spouse. The other half can be bequeathed by will or claimed through an elective share. Nine states have community property laws: Arizona, Alaska, California, Wisconsin, Idaho, Washington, Nevada, Texas and New Mexico. In these states, the elective share applies only to the deceased's half of community property, not to the entire estate.

Divorce

In every state, divorce nullifies a surviving spouse's rights. In cases where the deceased left a will and did not revise it or make a new one after the divorce, the law treats it as though his spouse predeceased him. All the property he would have left her reverts back to his estate and to his other heirs. If he named her as executor to oversee probate, divorce negates this provision as well. The court would appoint someone else to the position.

About the Author

Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.