Inheritance Laws by State

If you haven’t gotten around to writing your last will and testament, you should be aware that there are three systems of inheritance laws in the United States. It’s important to know which one affects your state—and your assets after your death.

Understanding Inheritance Laws

Inheritance laws are statutes and regulations that determine how individuals receive assets from the estate of a deceased family member. These laws ensure that beneficiaries can acquire some form of inheritance in the event that a will was never written or doesn’t cover all of the deceased person’s assets. In some cases, these laws also provide certain relatives with the right to claim an inheritance, which they can exercise regardless of the actual terms of the deceased’s will.

In the context discussed here, inheritance laws typically pertain to the spouse/partner of the deceased individual. While there are fewer rules regarding children, it is common for them to be able to receive a share of a decedent’s property.

Most states do have laws to protect against accidental disinheritance, should a will predate the birth of a child and fail to be revised before the death of the relative. That way, if property isn’t left for one child but is left for their siblings, it’s assumed this omission was accidental and the child in question will be given an equal share. In some jurisdictions, these laws can also apply to grandchildren.

When an individual passes away without a will, their estate is considered “in intestacy.” This means that a court-appointed administrator will compile all of the deceased’s assets, pay any debts or taxes, and distribute what remains to the beneficiaries based on the laws of their state. A will may also be considered intestate if it is declared invalid for a variety of reasons. In either case, only the probate court with jurisdiction over the estate is responsible for distributing the deceased’s assets.

State-by-State Breakdown

Make sure you know which of these three systems of inheritance law governs your state. Here’s how each one works.

Community Property

The first type of inheritance law is what’s known as community property. Under this system, each spouse automatically owns half of what they each earned while married. So when one spouse dies, half of their estate automatically goes to their partner, while the latter half may be distributed to other beneficiaries.

Of course, this is only a minimum requirement. If a will has been written, then the deceased had the option of reserving more than half of their assets for their spouse.

For the purposes of inheritance, community property laws consider income received from employment, property bought during the marriage (with income from work), and separate property that a spouse gives to the marriage (and therefore will be obliged to share with their spouse) as being “shared” between partners (i.e., going toward each of their “halves” should the other die).

Property that doesn’t apply to this policy includes anything acquired prior to the marriage, inheritances or gifts, and anything covered under an agreement between the spouses that’s to be kept separate from the marriage.

Common Law

38 of the remaining 41 states operate under common law policies. In the context of inheritance, spouses living in these states aren’t automatically entitled to half of the assets obtained throughout the marriage.

That said, many states will still give the surviving spouse the right to claim a third or even half of the deceased’s estate, also regardless of the terms of the will. However, these provisions only apply if the surviving spouse petitions the court for their share. Under common law, the ownership of property is determined by the name on the title of the property or by whoever’s income was used to purchase it.

Elective Community Property

Three states don’t fit neatly into either of these two categories. Alaska, for instance, adopted an elective community property system in 1998. It’s still effectively a common law state, but a spouse may also have an automatic right to an inheritance, so long as they sign a written agreement with their partner or create a community property trust together.

Tennessee established a similar law in 2010, while Kentucky adopted its elective community property system in 2020. In each state, both residents and nonresidents may create community property through a community property trust.

The Bottom Line

The last thing anyone would want to deal with while mourning is complications in the inheritance process. As such, even though it isn’t fun to think about, it’s crucial to ensure that you have your affairs in order as soon as possible to avoid confusion and make sure that your will can be carried out as written. To that end, make certain you understand the inheritance laws of your state when planning for your estate. That will give you the best chance that your plan for your assets won’t be overridden.