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BEWARE IF YOU THINK A SURVIVING SPOUSE AUTOMATICALLY INHERITS EVERYTHING

29September
2014

If you are married you may believe that if you die without a will that your spouse will inherit your entire estate. You may be wise to take a closer look at some of the variables that may impact the transfer of assets at death.

There is a saying that if you fail to plan that the government has a plan for you. Here in Arizona we have what is known as an intestacy law, the result of which can be surprising and potentially leave things quite messy.

A.R.S. 14-2101 provides that a decedent’s separate property and their one-half of the community property passes to the surviving spouse only if the decedent leaves no surviving issue or there are surviving issue, all of whom are issue of the surviving spouse.

This changes, however, if there are surviving issue whom are not in common with the surviving spouse. In that event, the surviving spouse only receives one half of the decedent’s separate property and no interest in the one half of the community property. And, to further complicate matters, if you own property in another state then you may be faced dealing with results from two or more state laws.

You should also consider how your property is titled.  Title will impact the disposition of property and can be the determining factor in who will inherit upon our death.   Is all of your property titled either solely in your name or jointly with your spouse? Do you have beneficiary designations?   Or is it owned jointly with a child or other family member?

If your home is titled in joint names with rights of survivorship with your spouse, then the right of survivorship will control. However, if it is titled in your name alone, then your spouse may or may not inherit.

A valid prenuptial or postnuptial agreement can also affect how property is distributed at death between spouses. The right to inherit property from your spouse can be legally waived in a prenuptial or premarital agreement signed prior to marriage or a postnuptial agreement signed after marriage. Such agreement may have the legal effect of a full waiver of inheritance rights, and treat the spouses as having predeceased each other. Or you and your spouse may have agreed to waive certain inherence rights such as the right to inherit an IRA or 401k.

Married or single, if you are wondering what you should do to be sure that your assets are distributed according to your wishes at death, particularly if you want to be assured that your spouse will inherit all of your property [or vice versa], you should seek a review with an attorney who handles estate planning. The attorney will be able to review how all of your assets are titled and then help you determine the options for making sure that you control the beneficiary of your estate.

Posted in estate planning |