Spouse’s Legal Rights to a Deceased’s Spouse’s Assets

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jun 29, 2022

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What legal rights one spouse has to assets when the other passes away depends on state laws and whether or not a valid will exists.

Community vs. Separate Property

In a community property state, all property acquired by either spouse during the marriage is presumed to be community property. This typically includes employment income earned during the marriage, any property purchased with employment income, and any separate property that a spouse has given to the community. Separate property is any property acquired before the marriage, any property acquired through inheritance or gift, and any property covered by an express agreement between the spouses to keep it as separate property. 

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Community Property States

In a community property state, each spouse owns half of the interest of the marital property. Consequently, upon death, spouses have the right to dispose of their share of community property in whatever way they see fit. For example, a spouse may specify in his or her will that upon his or her demise, someone other than the surviving spouse will inherit his or her half of the community property. A spouse cannot distribute the other spouse’s share of the community property, absent a prenuptial agreement to the contrary. However, a spouse has the sole right to dispose of their separate property. Accordingly, a deceased spouse can distribute both their separate property and their share of the community property in a will.

Separate Property States

Fortunately, the majority of states are non-community property states. In non-community property states, a spouse is not automatically entitled to half of the interest in all property acquired during the marriage. This is because both spouses do not necessarily own all property acquired during the marriage. Rather, ownership is determined by whose name is on the title or by establishing which spouse’s income purchased the property, although courts seek an equitable distribution of such assets.

A surviving spouse in such a state has protection from being completely disinherited. Through what’s known as elective share, a surviving spouse has a right to claim a portion of the deceased spouse’s estate regardless of what a will may state. Typically, this share is anywhere between one-third to one-half, depending on state law. This means, if a deceased spouse chooses to leave an amount less than the amount required by statute, a surviving spouse may make a claim to their elective share, unless there is a written agreement providing otherwise. This applies to any assets in a decedent’s estate.

Assets Outside the Family Estate

Regarding any assets that would pass outside of an estate, the laws and procedures are not the same. For example, if a non-spouse receives the proceeds of an insurance policy or they are designated as a beneficiary on a bank or like account, in most states, a surviving spouse would have no claim on these assets. These types of assets are considered non-probate assets. There are exceptions to this rule. In recent years, a handful of jurisdictions have allowed a surviving spouse to make an elective share claim against non-probate assets. In addition, if a spouse dies without a will, known as intestate (click here for more information regarding what happens when a person dies without a will), every state provides that a surviving spouse be given a portion of a deceased spouse’s estate. The share is has been established by applicable intestacy statutes. These statutes usually allow for one-half to one-third of the spouse’s estate.

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