Creating a will and/or trust during your lifetime is the best way to ensure that your assets are allocated in accordance with your preferences and wishes. But if a will does not exist, the state has a detailed body of rules governing the disposal of your property. Known as the laws of intestate succession, these rules generally distribute property in line with the degree of closeness of your living relatives. In most cases, determining who is a spouse or child for the purpose of allocating property is not difficult. But in some contexts, it is important to understand how the state defines certain family members in order to establish their inheritance rights.
A surviving spouse who is eligible to inherit under state law must have been legally married to the deceased at the time of death. If the couple had a divorce decree at the time of death, the surviving individual is no longer considered a spouse. In California, if a couple is legally separated, then the living spouse is not entitled to inherit property. In other states, a court may need to rule on whether the remaining spouse is entitled to an inheritance when there is a separation.
In cases of same-sex couples, a surviving spouse living in a state that recognizes same-sex marriage has the same inheritance rights under intestate laws as any other spouse. In states that do not permit same-sex marriages, couples that have chosen to enter into a registered domestic partnership or civil union generally have the same inheritance rights as married couples. In California, registered domestic partners are given the same legal treatment in this area as married individuals.
Inheritance rights for individuals in common-law marriages also present some uncertainty. A common law marriage exists when a couple who did not have a marriage ceremony, but live together and present themselves as married, are considered legally married under certain conditions. Most states, including California, do not recognize common law marriages; thus, the surviving spouse would not inherit under state law. In states that acknowledge common law marriages, a spouse may have inheritance rights if there is no will.
