In other words, even if a person were to specifically disinherit his or her spouse, the spouse could still make a claim, called a spousal election, against the estate, and would then be entitled to a percentage of the estate.
However, children have no such protection. A parent can disinherit a child by so stating in his or her Will, but the parent doesn’t even have to do that. By simply not mentioning a child in his or her Will, the parent has effectively disinherited that child.
Because children do not have any right of inheritance, then they only inherit by being named in the Will, either specifically by name, or as a class, such as “my children”.
This is the rule for inheritance in a Will, which is very different from the rules of inheritance when there is no Will. If a person dies without a valid Will, he or she has died intestate. In that case, each state has rules for who will inherit, and in what order.
In that case, in Pennsylvania, children fare much better. If the deceased person was married with children when he or she died without a Will, then both the spouse and the children will share in the estate.
The percentage for each is based on whether the decedent’s children are also children of the surviving spouse, or whether they are that spouse’s step-children. If the decedent was not married at the time of his or her death, better news yet for his or her children – they inherit equally among them all of his or her estate!
To be clear, we strongly believe that it is never a good idea for a person to have no Will at his or her death, and if a parent wants to disinherit one or more of his or her children, we have a frank conversation to assure that the parent understands the implications of his or her decision, and we strongly suggest that he or she specifically set out the disinheritance in the Will, so there is no confusion about the intent.
Although there are oh so many, many more important reasons to do so, this certainly is a reason to be nice to your parents! To get started on your estate planning, join us for one of our upcoming workshops. Just click here to RSVP.