When a married person makes her will, she should leave at least some of her property to her surviving spouse. In Georgia, there are laws in place to protect a surviving spouse. These laws are set forth in section "Wills, Trusts and Administration of Estate," located in Title 53 of the Georgia Code. The laws are designed to provide an inheritance for a spouse if the decedent disinherits her or dies without making a will.
In Georgia, when a person dies, his surviving spouse is entitled to an allowance from his estate that is designed to provide financial support for the year immediately following his death. Permitted under Section 53-3-1, the spousal allowance is especially important if the decedent was the primary wage earner and/or the spouse has to support minor children. The surviving spouse can request a specific amount from the court, according to Section 53-3-7. If other beneficiaries object to the requested spousal allowance, the court will determine the appropriate award based on evidence of the spouses’ standard of living during the marriage.
Right of Election
In addition to the spousal allowance, a surviving spouse is entitled to a bequest from the decedent’s will. If she is disinherited (left out of the will), whether the omission was intentional or accidental, Georgia law grants her a right of election. Section 53-3-3 states that if a surviving spouse is left minimal or no property in the decedent’s will, she can ask the probate court for her “statutory entitlement.” The court will award her an inheritance in accordance with Georgia’s intestate laws.
If a person dies without a will, Georgia’s intestate law allows the surviving spouse to receive an intestate inheritance from the estate. Section 53-2-1(b)(1) states that a surviving spouse will inherit the decedent’s entire estate if he did not have any children. If the decedent has children, they and the spouse will inherit equal shares of the estate. However, the surviving spouse is entitled to inherit a minimum of one-third of the estate. If the decedent had four or more children, equal shares would decrease the spouse’s inheritance to one-fourth of the estate. Therefore, the spouse would be entitled to her minimum share of one-third of the estate and the children would inherit equal shares of the remaining estate.
A will should be updated to reflect any changes in the decedent’s life, including marriage, divorce or the birth of a child. However, if a decedent does divorce his spouse, his will is not automatically invalid, though the divorce does eliminate a former spouse's inheritance rights. Under Section 53-4-49 of the Georgia Code, any provisions providing a bequest for a now former spouse are void, but the rest of the will remains valid. Any property left to the former spouse passes to an alternate beneficiary as though the she died before the decedent.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.