“If the surviving spouse is a second or subsequent spouse and did not have any children with the decedent, the surviving spouse takes even less.”
People make a grave error when they don’t have a will because they think their surviving spouse will automatically inherit all of their worldly goods. The laws of intestacy work differently, as explained in a recent article “Estate Planning: The spouse doesn’t always get everything” from nwi.com.
The surviving spouse rarely receives everything under the intestate laws. This often comes as a surprise to people. The usual response is “Oh, that can’t be right.” Oh, but it is!
In many states, one half of the decedent’s probate assets are distributed to the spouse and the other half are distributed to the decedent’s child or children.
If it’s a second or third marriage and the couple didn’t have children of their own, the surviving spouse ends up with even less.
Assets are divided between the spouse and biological children.
Bear in mind the intestate laws only apply to probate assets. Assets owned jointly will go to the other joint owner, as well as assets listing the surviving spouse as the beneficiary.
If you’d prefer to leave more to your spouse, you need a will. Intestacy literally translates to dying without a will. If you have a will and then die, you haven’t died intestate, and the provisions don’t apply.
However, there’s more to consider. Depending on your state’s laws, if you die and there are no living children, the spouse still doesn’t necessarily inherit everything. If your parents are living, they are also entitled to a portion of the estate.
This is another reason why it’s so important to have a complete estate plan, including a last will and testament, powers of attorney and health care power of attorney.
Trusts are used to control how assets are distributed, either during life or upon death. You can create a trust to be used by your spouse by creating the trust, funding it with assets and setting the terms of the distribution.
Each state has its own laws of intestacy, so an estate planning attorney who practices in your state needs to be contacted to determine what would happen to your spouse if you didn’t have a will. Your best recommendation is to meet with an experienced estate planning attorney and create a plan to protect your spouse and your children
Reference: nwi.com (Oct. 23, 2022) “Estate Planning: The spouse doesn’t always get everything”