Making Wills in Common Law and Community Property States

Making wills that are valid and the least contested depends very much on the laws of the state in which you live. Inheritance laws differ in common law and community property states, and those laws affect how you can properly distribute your property. Here’s what you need to know in order to write a will that will distribute your assets and possessions according to your desires and not according to what the probate court is mandated to do under state laws:

Making Wills in Community Property States

One half of your property that is not considered separate property must go to your surviving spouse if you live in a community property state. If you live in one of the following states, then you live in a community property state:

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington

Alaska and Wisconsin allow spouses to designate certain property as community property, and those assets are subject to applicable inheritance laws. There are two exceptions to community property rules, and these come in if you successfully disinherit your spouse from your will or if property is separate property. Separate property includes property that you inherit, property that is given to you alone, or property that you owned prior to the marriage.

Making Wills in Common Law States

Other states are common law states, and the inheritance rules differ on the required share that must be left to a surviving spouse. Many common law states require you to leave your spouse at least one third of the estate, and some states require as much as a one half share. A spouse may agree in writing to receive a lesser amount, but if not, the spouse can contest the will in probate court and claim a share according to inheritance laws. For example, if you write a will for an estate that’s worth $100,000 and leave your spouse $20,000, your spouse can object. The court may adjust your will by granting your spouse $33,333 or $50,000, depending on the mandated share allowed by common law in your state. The variation in the allowable share may depend on how long you were married prior to death, and the law often rewards a longer marriage with a higher spousal share.

Children in Both States

The laws protect spouses primarily and give no inheritance rights to children. Parents who want to ensure that they leave an inheritance to their children must see about making wills that include distribution of property to children. There are certain laws in community property and common law states that protect minor children in limited situations, even if your will does not provide for them. For example, if your spouse does not survive you, and you don’t leave the primary residence to minor children in your will, the probate court may give the property to the children based on state laws. The probate court may also seek equitable distribution in cases when a child is born after the will was written and therefore not included and when the other children were named and received property.

It’s important to consider the state where you live when making wills, including changes that are to be made if you leave one state to live in another.Consult with an attorney to find out about inheritance laws and how they may affect you and your property.

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