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Contesting a Will: The Rights of Family Members
What will happen if a family member contests the terms of your will? It is possible, especially if someone in the immediate family is excluded or limited to a relatively small inheritance. Although state law controls, here is a brief summary of the general rights of family members in this situation.
Rights of spouses: The rule of thumb is that you cannot cut a spouse completely out of a will. For instance, in community property states, a surviving spouse is essentially entitled to half of the deceased spouse's earnings during the marriage, absent any written agreement to the contrary.
In the other states, there is no rule that states that the property acquired during marriage is "owned" by both spouses. Nevertheless, most states provide protection to a surviving spouse regardless of what is stated in the will. Typically, the spouse can claim from one-third to one-fourth of the deceased spouse's estate. The length of the marriage may be a deciding factor in this determination. Note: These provisions are triggered if the survivor goes to court to claim the appropriate share. Otherwise, the will is followed.
Rights of ex-spouses: As a general rule, a divorce automatically revokes transfers made to the former spouse through the provisions of a will. However, to be on the safe side, it is recommended that a new will be drafted that leaves out the ex-spouse if that is the intended result.
Rights of children: Unlike a spouse, children have no right to receive an inheritance, except in extremely limited circumstances. However, many states have enacted rules protecting children from "accidental" disinheritances. This often occurs when a child is born after the creation of a will, but has not been added to the list of beneficiaries through a codicil. Result: State law may presume that the deceased intended to include all of his or her children.
To avoid future conflicts, you should amend your will to reflect any significant changes in your situation. This can ensure that your assets will be distributed according to your intentions.