A child’s spouse is not classified as an heir according the intestacy laws of any state. When a child inherits a portion of a parent’s intestate estate, the inherited property belongs solely to the child. The child’s ownership is the same as though the parent had given that property to the child while still living.
This sole ownership is not changed by marriage, whether the child is married before or after receiving the property. Again, just as with property that is received as a gift, the child is not legally obligated to share any portion of that property with his or her spouse.
Even those states that have community or marital property laws generally exclude any property that is inherited by either spouse in an individual capacity from inclusion with the remainder of the community or marital estate. (However, the appreciated value of all such property during the time of marriage will generally be included as community or marital property and subject to division.)
With that said, it is still possible for your child’s spouse to receive a portion of your intestate estate under certain, specific circumstances.
Child’s Subsequent Death
Each state has a minimum time period that an heir must survive beyond the deceased’s date of death in order to receive his or her share of the intestate estate. This minimum time period is typically around five days.
If an heir lives for the required minimum time period, that heir receives any share of the intestate estate that he or she is entitled to under the appropriate laws of intestacy.
This is true even when the heir dies prior to the actual distribution of the estate. Although the minimum survival period is an average of five days, it takes much longer for any property from the intestate estate to be distributed to the heirs.
The share of an heir who dies after the minimum survival period, but before distribution of the estate, will simply be given to the deceased heir’s estate.
Once it becomes part of the deceased heir’s estate, the original intestate share will be controlled by that heir’s will or, in the absence of a will, by an interpretation of the intestate laws applicable to that deceased heir.
In the typical scenario, the daughter-in-law or son-in-law will receive all or most of the intestate share intended for a child who initially survives, but dies soon after the parent. Every state’s intestate laws classify the spouse as a primary heir who is entitled to at least a portion of the deceased spouse’s intestate estate. If the deceased child has a will, it is very common for most people to name the spouse as the sole heir, entitled to the entire estate.
For instance, New Jersey requires each heir to survive the deceased by at least 120 hours in order to receive his or her share of the intestate estate (unless this requirement would cause the property to escheat).