Child’s share of divorced parent’s intestate estate

Divorced parents can be uncertain whether their children will receive any of the other parent’s estate if that other parent remarries.

Every state’s intestate laws give some degree of consideration to children when calculating the distribution of an intestate estate.

However, it is important to understand that these laws can only control the disposition of intestate property. If a former spouse does not have any intestate property, these laws cannot direct any property to any person, even a child.

One common method of avoiding intestacy is joint property ownership that causes a deceased owner’s portion of the property to pass to the remaining joint owner or owners at the time of death. A second, perhaps more direct, method of avoiding intestacy is ownership of a valid will.

Joint Property Ownership
Married couples typically own their property jointly in a manner known as “tenants by the entireties.” This is a unique form of ownership that can only be formed when both partners of a married couple own the same item of property together.

The advantages of owning property as tenants by the entireties are great enough that most married couples own all of their significant assets together in this manner, if not all of their property. One advantage of this type of ownership is that the property is generally exempt from attachment to satisfy a debt that is owed by just one of the spouses. This derives from the historical perspective of a married couple as being just one person, which prevented the property from being divided in this manner.

In that same regard, when one spouse dies all property that is owned with the other spouse as tenants by the entireties automatically belongs to the surviving spouse. (Unmarried couples can own property together as ‘joint tenants with the right of survivorship’ in order to achieve the same transfer at death. However, this type of ownership can be severed and does not provide protection against attachment.)

Outside of these advantages, most married couples simply own their property together for convenience. For instance, a joint checking account allows either spouse to easily access the money. Couples will also own major purchases together simply because it involves so much of their money, such as cars.

Although is it possible to be partially intestate with a valid will, if the former spouse has a valid will it would be very uncommon for his or her estate to have any intestate property. The greatest majority of wills are drafted for the purpose of instructing who is to receive all the property that is owned at the time death.

Partial intestacy will only occur when an otherwise valid will directs the disposition of less than the entire estate or does not account for the death of every intended beneficiary.

A will that only includes gifts of specific items can only control who receives those specific items, as named by the will. For instance, a will that only says “I give my car to Charles and $500 to Lewis” only controls the car and $500. All property that is not named by the will (and doesn’t have any other legal instructions, such as joint ownership with survivorship rights) is controlled by intestate laws.


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