Spousal Inheritance Rights

If you’re making a will or planning your estate, it’s important to know how you and your spouse own property and what you can inherit from each other. Understanding what belongs to each of you makes it easier to decide how to leave your property. You may also have questions such as:

“If we own a house together, who inherits when one of us dies?”

“What rights do I have if my partner owns the house?”

“Are the kids entitled to a share of property?”

This article explains how inheritance laws affect spouses and helps you figure out who owns what, so you can make an estate plan that matches your wishes.

What Is Inheritance Law?

Inheritance law is a set of rules that controls how a person’s property is distributed after they die. These laws determine who can inherit, such as a spouse or children, what share each person receives, and what happens if there’s no will. Inheritance law also covers estate planning matters like wills, trusts, probate court proceedings, and the rights of heirs. The details vary from state to state.

What Are the Property Ownership Rules for Spouses?

Most people who are married or in a committed partnership make a will or use other estate planning tools to leave most or all of their property to their partner. In these cases, the details of marital property law matter less because the plan already gives the property to the surviving partner.

However, if you want to leave your assets to someone other than your spouse or partner, it’s important to know your state’s laws. Sometimes, your spouse or partner may have rights to property you thought was only yours. If you don’t own it under the law, you can’t leave it at death. The reverse is also true. You may own a portion of the property that you think belongs to your spouse.

It’s especially important to know who owns what if you and your spouse don’t agree on your estate plan. To figure this out, you’ll need to know if your state follows community property or common law property rules.

Ownership in Community Property States

Spouses who live in community property states need to keep these key points in mind when making a will:

• You are free to leave your separate property to any person or organization of your choice.
• You may leave your half of the community property (which you and your spouse or partner jointly own) to any person you select.
• At your death, your spouse automatically owns their half of the community property.
• If you’re not sure how your house or other property is titled, but you bought it during your marriage, you likely own it equally with your spouse as community property. This is usually true even if one person paid most of the money, unless that money was earned before marriage or inherited and kept separate. Earned money or an inheritance becomes marital property when it is combined with community assets.
• Community property rules that govern married couples can also extend to registered domestic partners; see the list above and check your state’s laws.
• If you want to leave everything to your partner, you may be able to avoid probate by owning property with the right of survivorship or by making a community property agreement.

What Is Your Separate Property?

In community property states, your separate property is property that you:

• own before marriage
• receive by gift or inheritance after you marry
• purchase in full with your separate property, and
• earn or acquire after permanent separation.

In some states, other types of property, like personal injury awards received by a spouse during marriage, may also count as separate property. See below for more details.

Community property states have different rules for income earned from separate property. In most states, this income stays separate, but some states treat it as community property.

Typically, separate property remains separate as long as it is not:

• combined with marital property to the point where it is impossible to distinguish between separate and shared assets, or
• transferred in writing by the owner of the separate property into shared ownership.

Just as separate property can become community property, community property can also be converted into separate property if one spouse gifts it to the other. While the rules differ by state, such transfers generally require a signed document.

What Is Community Property?

The main idea of community property is simple. During marriage, any property earned or acquired by either spouse or partner is owned equally, with each person having a 50% share. The only exception is property received by one person as a gift or inheritance.

More specifically, community property generally consists of:

• All income earned by either spouse or partner from employment or any other source—such as wages, stock options, pensions, and business profits—except for gifts or inheritances received by only one person. This rule typically applies during the time the couple is living together as spouses or domestic partners. In most community property states, income and property acquired after permanent separation are treated as the separate property of the recipient.
• Any property purchased with community property income during the marriage.
• Any separate property that becomes community property under state law. This can happen if one spouse or partner gives their separate property to both partners, or if assets are mixed together so much that you can’t tell them apart. This is called commingling.
• As mentioned earlier, in some community property states, income from separate property acquired during marriage, such as rent, interest, or investment returns, is also considered community property. In most states, though, this income stays separate.

Property That’s Hard to Categorize

Most of the time, it’s easy to tell the difference between community and separate property. But some situations are more complicated. Here are a few common examples that can be confusing:

Businesses. Family businesses can present challenges, particularly if one spouse or partner owned the business before marriage and it grew during the relationship. If you and your spouse or partner disagree about how to handle the business in your estate plan, consulting a lawyer or accountant is advisable.

Personal injury settlements. Generally, awards from a personal injury lawsuit are considered the separate property of the recipient spouse or partner, but this is not always the case. If a substantial portion of your assets comes from a personal injury settlement, consult your state's laws or seek advice from an estate planning professional.

Pensions. Usually, the part of a pension earned during marriage is community property, including military pensions. But some federal pensions, like Railroad Retirement and Social Security benefits, are not considered community property under federal law. Also, because the federal government does not recognize domestic partnerships, community property rules do not apply to federal benefits earned by registered domestic partners.

Ownership in Common Law Property States

Common law property states include every state not listed as a community property state above.

In these states, you own any property:

• you purchased with your own assets or income, and
• titled in your name alone, such as assets with a deed, title slip, or other legal ownership documentation.

In common law states, ownership of valuable assets often depends on whose name is on the title. If both you and your spouse or partner are listed on the deed to a house, you both own it, no matter who paid for it. If only your name is on the title, even if your spouse or partner paid for it, you are the sole owner.

For valuable property without a title document, such as an expensive artwork, ownership belongs to the person who used their income or assets to purchase it. If you and your spouse or partner used joint funds, you both own the item equally. Each of you can leave your share to someone in your will, unless you have an agreement for joint tenancy or tenancy by the entirety.

Moving From State to State

Things can become complicated if a married couple acquires property in a common law state and then moves to a community property state. In California, Idaho, Washington, and Wisconsin, property acquired before the move is treated as if it was always community property. This is called quasi-community property, though Wisconsin calls it deferred marital property. Other community property states use the rules from the state where the property was first acquired.

When couples move from a community property state to a common law state, the opposite happens. Usually, each spouse keeps a half-interest in the community property accumulated while living in the community property state. However, if disagreements arise after someone dies, sorting things out can be challenging because courts have not always handled these cases uniformly.

Your Spouse’s Right to Inherit From You

If you want to leave your spouse or registered domestic partner very little or nothing, you may run into legal problems. In every common law state, a surviving spouse or partner cannot be completely disinherited, and most states make sure they get a significant share of the estate. Community property states have their own ways of protecting spouses.

Spousal Protection in Common Law States

In common law states, if a surviving spouse or partner gets less than the law allows, they can usually choose to accept what’s in the will (called taking under the will) or claim the minimum share the law guarantees (called taking against the will). Some states also let the spouse or partner inherit the family home or use it for life.

The laws that protect spouses and domestic partners are different in each state. In many common law states, a spouse can claim one-third of the property in the will, while in some states the share is one-half. The amount a spouse can claim may also depend on things like whether there are young children or if the spouse has already received assets outside the will, such as through trusts or other arrangements.

These choices are optional. If a spouse or partner is happy with what the will provides, they can simply accept it. In almost all states, a spouse or partner can also give up their right to inherit by signing a formal waiver. If you want to do this, it’s a good idea to talk to a lawyer.

Spousal Protection in Community Property States

In most community property states, surviving spouses or registered domestic partners do not claim a share of the estate. Instead, each partner automatically owns half of all property and earnings from the marriage. Some states make rare exceptions, such as if a spouse made a will before marriage and did not update it, or if one spouse tries to keep the other from getting their fair share. To learn more, check your state’s laws or talk to a lawyer.

What Does a Spouse Inherit If There Is No Will?

If a person dies without a will (called dying intestate), the spouse’s inheritance depends on state law. These laws are called intestate succession laws, and you can learn more about them in What Happens If You Die Without a Will? Here’s a brief overview:

• No children or parents. The spouse usually inherits everything.
• Children from the relationship. Some states also give the children a share, but many do not.
• Children from another relationship. The children may get a share.
• Surviving parents but no children. The deceased’s parents may get a share.
• Community property states. The spouse usually gets all community property and may also get a share of separate property, depending on the family situation.

For answers tailored to your situation, consult your state’s laws or seek help from a lawyer.

Learn More About Wills

When thinking about your spouse’s inheritance rights, remember that if you don’t plan to leave at least half your property to your spouse or partner in your will, or haven’t provided for them in other ways, you should talk to an estate planning lawyer.

For more information about wills, see the following articles:

• Different Types of Wills
• What Is an Executor?
• Write a Will Without a Lawyer
• Digital Assets Estate Planning
• Naming a Child’s Guardian

You can find out more about making WillMaker’s will and living trust in WillMaker’s Legal Manual.