In Arizona, spouses and minor children have a certain limited right to inherit regardless of what is written in the will. Read below to learn more about inheritance rights in Phoenix, Arizona.
Right to Inherit Laws for Spouses in Arizona
Although most couples decide to leave the majority, if not all, of their estate to their spouse, this is not always the case. Sometimes, people decide they want to leave their spouse nothing or very little. This often occurs if the couple got married much later in life and had children from before the marriage. There are also situations where a couple remains married, whether for religious or other reasons, even if the marriage was not happy. However, disinheriting your spouse is not a simple task.
In Arizona, spouses have significant inheritance rights and usually have a right to at least partial inheritance. Arizona is a community property state. This means that property acquired during the marriage is considered the property of both spouses, regardless of whose name is on the title or deed. The surviving spouse is legally entitled to half of all your community property when you die. In most cases, you can leave half of your community property (as well as your separate property) to someone other than your spouse.
In addition to spousal protections under community property laws, Arizona has a statutory homestead allowance that protects spousal inheritance rights. No matter what the will states, a surviving spouse is entitled to a minimum. They are entitled to receive the first $18,000 from your estate, even ahead of your creditors. If the spouse receives other property outside probate through the operation of a joint tenancy, trust, or beneficiary designation, the amount they receive may be reduced.
An individual can waive the statutory allowance in a valid prenuptial or postnuptial agreement. Furthermore, prenuptial or postnuptial can also override Arizona’s statutory division of community property. However, if there is no agreement and you disinherit your spouse, they can challenge your estate plan.
Arizona law provides special protections to spouses when an individual executes a will and later marries. The law recognizes that in these situations, there is a high likelihood that the spouse was disinherited by mistake. Arizona will give the surviving spouse an intestate share unless:
- The will states that the omission was intentional;
- The will states that it should remain effective even after a subsequent marriage; or
- The testator made a transfer of property outside of the will, which can be shown to be a substitute for property left through the will.
This rule does apply to any property the deceased spouse left to their children.
If you do not want to leave the majority of your estate to your spouse, you should reach out to an experienced Phoenix estate planning attorney to ensure that your wishes will be followed.
Inheritance Rights of Children in Arizona
There are many reasons why parents may decide to treat their children unequally or leave a child out of their will entirely. In general, adult children have no legal right to an inheritance in Arizona. The easiest way to disinherit an adult child is to state intention in the will.
However, sometimes children who are born or adopted after a will is created are unintentionally disinherited. In this case, under Arizona law, they are entitled to an intestate share except in the following situations:
- The will show there was an intent to disinherit the child;
- The will leaves substantially all of the estates to the spouse, who is the mother of the child;
- The testator provides for the child by a transfer outside of the will, which is intended to be in lieu of a share in the will.
Arizona law does protect minor children from disinheritance. If there is no surviving spouse, they are ensured a minimum distribution of $18,000 upon their parent’s death under the homestead allowance. This amount may be reduced if the minor child receives property that passed outside of probate.
Inheritance Rights of Ex-Spouses in Arizona
Ex-spouses have no inheritance rights in Arizona. If an ex-spouse is included in a will that was written before the divorce, they will be disqualified from receiving property as a beneficiary and from acting as the personal representative. The former spouse is treated as if they predeceased the testator.
Your Phoenix Estate Planning Attorney
Nicole Pavlik is an experienced Phoenix estate planning attorney who can answer your questions about inheritance rights. If you have questions about charitable giving and estate planning, call Nicole Pavlik Law Firm today at (602) 635-6176 for a free consultation.