Unfortunately, rifts sometimes arise between family members that are much more serious than just temporary squabbles. The result may be estrangement, defined as “the state of being alienated or separated in feeling or affection; a state of hostility or unfriendliness” or “the state of being separated or removed.”[1] Estrangement does not mean that the relationship has come to an end legally, however.
A husband may move out of the home he shared with his wife and have limited or no contact with her or their children. A child who has been abused may live with a relative and avoid contact with their parent. A parent may choose not to associate with a child who has committed crimes or abused their trust. These types of situations are unfortunate and occur more often than we would like. You may be surprised to learn that limited contact, or even the absence of any contact, will not have a major impact on the legal right of an estranged spouse or child to inherit from their family member, especially if there is no estate plan expressing an intention to disinherit them.
Estrangement from a Spouse
Intestate Succession Statutes.
Intestate succession laws provide a default estate plan representing the state’s view of the fairest distribution of a deceased person’s money and property. This means that if the deceased spouse did not have an estate plan in place, the surviving spouse is legally entitled to inherit from the deceased spouse as set forth in their state’s intestate succession law even if the spouses are estranged—and in many states, even if they are legally separated. In many states, if the estranged couple did not have any children, the surviving spouse will likely inherit the entire estate of the deceased spouse—even if they despised each other and had not seen each other for many years. If there were children from the union, the surviving spouse and children may each receive a portion of the estate as set forth in the intestate succession statute; in community property states, even if the couple had children, the spouse may inherit all community property, although any separate property may be divided between the surviving spouse and the children.
For example: An estranged married couple in the state of Texas, if the husband dies without obtaining a divorce or drafting an estate plan, the court will look to see if the deceased husband fathered any children, and if there are children, were they all born to the same mother. If all the children of the deceased were born to the estranged wife, then all the community property (meaning all the income earned during the marriage) will be inherited by the estranged wife. Separate property may be divided between the wife and the children.
Pretermitted Spouse Statutes.
Some states have another type of statute that is intended to protect a spouse who is unintentionally omitted from a will, for example, if the will was created prior to the marriage and was never amended to provide for the spouse. These laws typically provide that unless the will expresses an intention to disinherit the surviving spouse, the spouse will inherit the amount they would have received under the intestacy statute if the spouse had died without a will. Therefore, depending on the circumstances, even if an estranged spouse’s deceased spouse had a will that did not provide for them, the estranged spouse may be entitled to inherit some or all of the deceased spouse’s property if there is no express statement in the will of the deceased spouse’s intention to disinherit them.
Although Texas does not currently have a pretermitted spouse statute, please be aware that the community property provisions will impact on money and property acquired during the marriage, whether the parties are estranged or not.
Elective Share Statutes.
Even if the deceased spouse created a will that expressly indicates an intention to completely or partially disinherit their spouse, the state’s elective share statute typically protects the surviving spouse to some degree. This type of statute allows a spouse to elect to inherit a certain percentage—often ranging from thirty to fifty percent—of their deceased spouse’s estate regardless of what the deceased spouse’s will says. In some states, the surviving spouse is only allowed to take their elective share from the probate estate, which excludes money and property that have been transferred to a trust, insurance policies, and retirement or financial accounts that name other beneficiaries. Other states have laws that include both the probate estate and other accounts or property the deceased spouse owned; these laws provide that the surviving spouse’s elective share can be calculated based on a larger pool of assets called the augmented estate. As a result of the intestacy and elective share laws, an estranged spouse is likely to be protected from complete disinheritance in the absence of other planning.
As mentioned above, Texas’ community property laws govern the share of the marital estate that a surviving (yet estranged) spouse would be entitled to. In Texas, the law states that half of the money and property acquired during the marriage belongs one half to each partner. So, an estranged spouse will keep half of the entire estate.
Estrangement from a Child
As with an estranged spouse, if no estate plan is in place, a child will be able to inherit from their parent under the state’s intestacy statutes, even if they have had no contact with their parent for many years.
The estranged child may also inherit under some circumstances if their deceased parent created a will that does not provide for them. Similar to the laws designed to protect surviving spouses who were unintentionally omitted from a will, many states have laws providing that if a child is unintentionally omitted from a will—for example, if the child was born after the will was created and the will was not updated to include them—the child should inherit the amount they would have received under the intestacy statute if the parent had died without a will. This protection will not apply if the parent’s will expressly disinherits the child. However, under this type of statute, if the will does not expressly state an intention to disinherit the estranged child, they may be able to inherit in specified circumstances even if their parent’s will does not provide for them.
Ways to Address Estrangement In Your Estate Plan
Those who do not want an estranged family member to inherit from them should create an estate plan that includes a will or a trust which expressly states their intention to not include the estranged spouse or child as a beneficiary. One other clause to consider is the “no-contest clauses” which states that the child will lose the inheritance if they unsuccessfully contest the will. While not always enforceable, having this language in your estate planning documents can be a deterrent to future litigation by a disappointed child or grandchild.
Take Steps to Memorialize the State of the Relationship
For estranged spouses, doing what is required to legally end the relationship is another way to avoid unintended results when one of the spouses dies. After divorce, the surviving former spouse is not entitled to inherit any amount from the deceased former spouse unless there is a property settlement agreement providing otherwise. Depending on state law, even if the surviving former spouse is still a beneficiary in the deceased former spouse’s will, they may not be entitled to inherit pursuant to the will unless there is additional documentation showing that the deceased former spouse intended that result. As mentioned above, the effect of legal separation varies depending on state law: in some states, legal separation has no impact on a spouse’s right to inherit under the intestacy or elective share statute. In Texas, legal separation does not cut off an estranged spouse, but a formal order of divorce will effectively disinherit an estranged spouse.
We Can Help
One of the important goals of estate planning is to ensure that your wishes are carried out. If you want to prevent an estranged family member from inheriting from you, your estate plan needs to expressly state that intention. We can help you think through how to best accomplish your estate planning goals while also minimizing any further strife in your family. Nielsen Law PLLC provides family-focused estate and business planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information, and to learn about our firm, please contact us. We look forward to working with you.
[1] Estrangement, Dictionary.com, https://www.dictionary.com/browse/estrangement (last visited Aug. 29, 2023).
