Select Page

Most people use wills to distribute the assets and property after death. However, sometimes a will may not have been updated to reflect changes in the person’s family. In other instances, a descendant or surviving loved one may have a serious dispute with the will’s instructions. States have set up a number of laws to resolve those situations. In some cases, a surviving spouse, child or grandchild may have a legal claim to property even if they were not named in a will.

Spouses have the strongest cases to claim property. In community property states like Florida, a surviving spouse can often claim a certain percentage of their deceased spouse’s property even if they were not expressly named in the will. While the laws vary by state, many allow the surviving spouse to claim up to one-third of the property. If a deceased person left their spouse less than the state’s legal requirement in their estate planning documents, the surviving spouse could take the matter to court to pursue a greater share.

Children have little legal recourse except in the case of an inadvertent omission. This usually happens when a child is born after the will was created. The court assumes that the deceased simply forgot to update their will to reflect the new addition to their family. In that case, the child may pursue legal action to claim an appropriate share of the estate. This same law can apply to grandchildren if the child’s parents are deceased.

Changes in one’s situation, such as divorce and new children, can have a serious impact on one’s estate plan. It may beneficial to review one’s estate plan documents regularly to be sure that they account for all potential descendants. An experienced estate planning attorney could help an individual prepare the necessary planning documents and revise them as necessary.

Source: Findlaw, “Inheritance Law and Your Rights“, December 01, 2014