An Estate Planning Lawyer Walks Through the Potential Pitfalls of Assuming Your Spouse Inherits
If You Die Without a Will, Does Your Spouse Inherit Your Entire Estate?
If you are married and you die without a Last Will and Testament, you may mistakenly believe that your spouse will still inherit your entire estate. Not so fast. Who will inherit your estate depends on several different factors:
How is your property titled?
Is your property titled in your name alone, in joint names with your spouse, in joint names with a child or other relative, or does it have a beneficiary designated? Knowing how all of your property is titled is the real key to understanding who will inherit it after you die. For example, if your home is titled in joint names with rights of survivorship with your spouse, then your spouse will inherit the home. However, if it is titled in your name alone, then your spouse may or may not inherit the home as determined by applicable state laws. These laws are referred to in the U.S. as “intestacy laws” and are discussed below in item #3.
Did you you have a prenuptial or postnuptial agreement?
The right to inherit property from your spouse can be legally waived in a valid agreement signed before you get married (a prenuptial or premarital agreement), or after you get married (a postnuptial agreement). If you and your spouse entered into such an agreement, then the legal effect of a full waiver of inheritance rights is to treat your spouse as having predeceased you. You and your spouse may also agree to only waive certain inheritance rights, such as the right to inherit your IRA or 401(k).
What does your Minnesota’s intestacy laws say?
In Minnesota probate law, in the absence of proper estate planning document, the surviving spouse must divide the estate with the deceased spouse’s children, if any. I have a client with this exact situation. His wife unexpectedly died at the age of 42 only two months after they bought a new home. For financial reasons, the home was only in her name. She died without a will. She also had two adult sons from a prior marriage. The only asset in the estate was that new home. Under Minnesota probate law, the spouse gets a life estate in the home but the kids get the future interest. This means that the survivor may live in the house for his lifetime but that it will then go to her kids (not his beneficiaries) at his death. Further, if he wants to sell the house, he must get the approval of the kids!
Also, if you own real estate located outside of Minnesota, the intestacy laws of the other state will govern who will inherit your real estate located there, while Minnesota law will govern who will inherit everything else. This could result in different beneficiaries of your out-of-state real estate and the rest of your estate, leaving your family with quite a mess.
What Should You Do?
If you are married and you want your spouse to inherit all of your property, then the only way to be assured that this will happen is to consult with a qualified Minnesota estate planning attorney. At Unique Estate Law, we will be able to review how all of your assets are titled and then help you determine the options for making sure that your spouse will be the only beneficiary of your estate.
Minnesota Estate Planning Attorney
Contact Unique Estate Law today by calling (952) 955-7623 to set up an initial consultation to discuss your plan.