Child’s share of divorced parent’s intestate estate

Although this is possible, almost every valid will contains a ‘residuary clause’ that directs who is to own all assets that are owned at death and that can be controlled by the will. (Again, this is generally all property that doesn’t have any other legal instructions for ownership.)

Similarly, a will that does not account for a contingency may also create partial intestacy if that event actually occurs. For instance, a will that grants ‘Fifty percent of all my property to Charles and fifty percent of all my property to Sally or to the issue of either beneficiary who does not survive my death’ may result in partial intestacy.

This language does not account for the possibility that either beneficiary may die without any surviving issue, making the gift to each beneficiary subject to the laws of intestacy if that event occurs.

In practice, most married couples that take the time to plan their estates by making wills do so for the purpose of ensuring that the surviving spouse is the beneficiary of everything the other spouse may own at the time of death. Although these wills may or may not make specific gifts to other beneficiaries, they almost always have a residuary clause that grants all individually owned property to the surviving spouse.

Will contests may provide an heir with the right to seek a portion of a parent’s estate, but the mere fact that a child is not provided with any of a deceased parent’s estate is typically not sufficient basis for contesting a will.

Every person is generally entitled to give away their property however they wish. A parent’s failure to make a gift to any child by his or her will is usually not enough to entitle that child to seek a portion of the estate through legal action.

Relevant State Law
Finally, even in those instances where the new spouse does not receive all of the deceased parent’s property, a child’s entitlement to any portion of the deceased parent’s intestate estate is controlled by intestate laws of:

1) the state where the parent permanently resides at the time of death, and
2) the state where any real estate is located.

Although all states give some consideration to the decedent’s children when distributing an intestate parent’s estate, the methods and the actual final amounts differ from state to state.

There are also certain states that always give the surviving spouse a minimum dollar value of the intestate estate, without any regard to who else is living, making the answer to this question further dependent upon the total value of the former spouse’s intestate estate.

For instance, Hawaii always gives the surviving spouse the first $100,000 of the intestate estate when he or she is not the parent of all the deceased spouse’s children. If the intestate estate is less than $100,000 the children simply do not receive any portion of the intestate estate. As another example, Mississippi gives the deceased’s surviving spouse and each child an equal share of the intestate estate, without any minimum to the surviving spouse and without any regard to the surviving spouse’s parental relationship to the children.


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