Inheritance Laws & the Order of Precedence

How your heirs inherit your property after you die is determined by several factors, most importantly, your last will and testament (if you have one) and the intestate succession laws of your state. While you can choose how to distribute your property through a valid will, dying without a will leaves that determination up to the laws already in place within your state. Talk to an estate-planning attorney in your area if you need legal advice about inheritance and hierarchies of inheritors.

If you create a valid last will and testament, the terms of the will dictate who inherits your property. While all states allow you to create a last will, the requirements involved can differ considerably. For example, some states allow you to pass on property with an oral will, but only under limited circumstances, such as when you are on your death bed or in your last stage of an illness. Regardless of the kind of will allowed, as long as your will meet the requirements imposed by your state, you can pass on property as you choose.

If you die without a will, you are said to have died intestate. In this situation, the laws of the state in which you lived, or where your property is located, determine who inherits your estate. For example, Ohio's intestacy statute, found in Ohio Revised Code section 2106.06, states that your spouse receives the entire estate as long as you have no surviving children. If you die leaving behind no spouse but two surviving child, on the other hand, the children split the estate evenly.

In some inheritance situations, the state intestacy laws dictate that property must get distributed on a "per stirpes" or "per capita" basis. This applies when you die leaving behind children and grandchildren, but one of your children preceded you in death. For example, let's say you had two children, A and B, and each child had two grandchildren, A1 and A2, and B1 and B2. Child B precedes you in death. If your state is a per stirpes state, the portion of your estate that would have gone to child B gets distributed to grandchildren B1 and B2 after you die. If you live in a per capita state, child A receives the entire estate.

What if you do not want your spouse or child to inherit anything? Like other inheritance issues, the answer depends on the state in which you live. In all states except Louisiana, you can effectively disinherit a child by creating a valid will that does not leave anything to that child; though, in Louisiana, you can still do so as long as the child is age 24 or older. You cannot generally disinherit spouses, as states allow for a minimum share that a spouse can receive, called an elective share, once the other spouse dies.