If you're married and you die without making a valid will, referred to in legalese as "dying intestate," will your spouse nonetheless inherit your entire estate? As with most questions that arise in the wills, trusts, estates and probate context, the answer is, it depends. OK, depends on what?
- How is your property titled? Who owns what? The most important thing to consider is how all of your property is titled - is it in joint names with you and your spouse, in joint names with you and someone else, in your name alone, or does it have a beneficiary designated? This is the real key to understanding who will inherit your property after you die.
- Did you and your spouse sign a prenuptial or postnuptial agreement? The right to inherit property from your spouse can be legally waived in a valid prenuptial or postnuptial agreement. If you and your spouse entered into such an agreement, then the legal effect of a full waiver of inheritance rights is to treat the surviving spouse as having predeceased the deceased spouse with regard to property titled in the deceased spouse's sole name.
- What does state law say? Contrary to popular belief, the intestacy laws of many states do not give the entire probate estate of a married person to the surviving spouse. For example, Florida law provides that if you have children who are not the children of your spouse and you die without a will, then your spouse will inherit 50% of your property and your children will inherit the other 50%. Under Tennessee law, Mechelle McNair, the wife of murdered NFL quarterback Steve McNair (who died intestate in July 2009), only inherited between 33% and 40% of her husband's $20 million probate estate, while Mechelle's children that she had with Steve and two children Steve had from other relationships inherited the balance. Also be aware that if you live in Florida but own real estate in Tennessee, then the intestacy laws of Tennessee will govern who will inherit your real estate located there, while Florida law will govern who will inherit your other property. This could result in different beneficiaries of your Tennessee real estate vs. the rest of your estate. What a mess.
The bottom line - if you're married and you want to insure that your spouse will inherit everything, then you will need to consult with an attorney familiar with the inheritance laws in your state and any other state where you own real estate to insure that you've done what is legally necessary to give your spouse 100% of your estate.