Without a Will, Can My Same-Sex Spouse Inherit my Estate?

The landmark U.S. Supreme Court decision, entered on June 26, 2015, established that states can no longer ban same-sex marriage.  Before that decision, same-sex marriages were legal in only 37 states.  In seven states these marriages were entirely banned.  In the remaining states, including Arkansas, state courts had declared state same-sex marriage bans unconstitutional, but the rulings were stayed at the time.  Now that same-sex marriage is legal nationwide, inheritance should no longer be a concern.  So, when clients ask, “without a will, can my same-sex spouse inherit my estate?” The answer is yes.

Without a will, surviving spouses inherit automatically

Not everyone has an estate plan.  Even as common as wills are, not everyone has one of those either.  For that reason, each state has established a set of laws that determines who your heirs will be if you do not have an estate plan in place.  Typically, your property goes to your closest living relatives.  In Arkansas, your estate will be distributed as follows:

• Surviving children, and the descendants of any predeceased child, divide the estate equally.
• Surviving spouse, if there are no children, takes the entire estate. There is an exception if spouses were married for less than 3 years at the time of death.  In that situation, the spouse only gets 50% of the estate.
• There is no surviving spouse and no children, then the surviving parents share equally.
• Brothers and sisters, and descendants of predeceased brothers and sisters, share equally.
• Grandparents, uncles and aunts and descendants of predeceased uncles and aunts, share equally.
• Great grandparents, great uncles and great aunts and descendants of predeceased great uncles and great aunts, share equally.

No surviving relatives

If you do not have any surviving relatives at the time of your death, meaning no one fits into the above categories, then your estate will “escheat” to the county where you resided.  That means that the government will receive all of your assets, by default.  This does not happen very often because the laws are designed to make sure your property will end up in the hands of your relatives, even if they are remote.

Limitations on intestate succession.

The rules of intestate succession do not apply to property that is not solely in your name.  In other words, if your name is on your car, along with your daughter’s name, it does not pass to anyone through intestate succession.  The same is true with life insurance proceeds, IRAs, and other investment tools that name a particular beneficiary.  Also, only relatives who outlive you by at least five days can inherit.  So-called “half” relatives inherit the same as whole relatives.  Relatives who are born after your death, but were conceived before your death, can still inherit.

If you have questions regarding inheritance without a will, or any other estate planning needs, please contact Wilcox Attorneys, PA online or by calling us at (479) 443-0062.