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Determining who inherits the assets of a decedent’s estate is usually simple if the estate has a valid will, because the will sets out who the assets go to. However, wills can be fuzzy if they're not well drafted, and sometimes beneficiaries can be hard to track down. If the estate is intestate, meaning it does not have a valid will, the laws of intestacy determine who inherits what. Even if an estate does not have a will, the surviving spouse and the children of the decedent generally have rights to inherit.
Inheritance rights of the surviving spouse
If the decedent was married at the time of his or her death, his or her surviving spouse has a role in the disposition of the estate whether there is a valid will or not. When there is a valid will, the surviving spouse has a choice:
- He or she can choose to take any inheritance stated under the will.
- He or she can elect to take against the will — that is, to receive the share that he or she is entitled to by statute, known as the statutory share, rather than the amount he or she stands to inherit under the will. Generally, the spouse's statutory share isn't as generous as the spouse's intestate share (the share he or she would receive if the decedent died without a will), and they are definitely two different animals.
Inheriting under the will
In the most common scenario, the surviving spouse chooses to inherit whatever the will provides for him or her in accordance with the decedent's wishes. Most spouses plan their estates together and execute their wills at the same time. They typically have a common purpose in mind: to take care of the survivor during his of her lifetime (along with any children if they are minors). Their plans typically mirror each other’s. These sorts of wills are known as reciprocal, where each will gives nearly everything to the other and only after the second death does the property pass out into the wider family.
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