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How Is “Inheritance” Defined?

In legal terms, inheritance is the legal process through which one individual's property is passed to another named individual, set of individuals, or entity through the laws of intestate succession and distribution. Often when persons refer to receiving an inheritance, they are referring to receiving property that they acquired through the terms of a will. When a person dies without leaving a will, they are known to have died intestate. 

However, the legal definition of inheritance does not include property covered by a will. Instead, inheritance only includes property that is distributed according to the state laws of intestate succession. Thus, when an individual dies without a will, or there is some property not specified in a will, inheritance laws will come into play in order to determine which of the decedent's (deceased person) surviving family will receive that property. The property that is left behind by a person when they pass away is referred to as that person's estate.

Typically, under the laws of intestate succession, the decedent's surviving spouse will be entitled to the largest portion of the decedent's estate. Next, the decedent's children will then be entitled to the next largest portion of the decedent's estate. Finally, the decedent's grandchildren, siblings, parents, or other family members may be entitled to a smaller portion of the estate. If the decedent does not have any family, and did not believe behind a will naming another party as beneficiary to their estate, the decedent's property may escheat to the state. 

It is important to note that every state's laws differ in regards to intestacy. Therefore, it is important to research your state's laws of intestacy and inheritance if you find yourself in a situation where you may be receiving an inheritance. This is especially true if you receive a letter from an attorney representing another party subject to the inheritance that is attempting to get you to waive your rights to the inheritance.

What Types of Issues Do Inheritance Lawyers Handle?

Inheritance lawyers handle a variety of different legal issues. First and foremost, an inheritance lawyer will be the representative of the individual that hires them, who may be receiving an inheritance. The first thing an inheritance lawyer will do is make a determination as to whether or not the individual that is consulting with them is rightfully due an inheritance under the laws of intestacy for that state.

Next, the attorney will determine the amount of inheritance that the individual may be receiving. In doing so, an inheritance lawyer may contact various different family members that may be entitled to the inheritance under the laws of intestacy. However, typically an inheritance lawyer will first file a claim to the inheritance in the Probate Court of their local jurisdiction.

After the probate process has begun, some courts may appoint an attorney ad litem. The attorney ad litem would then be responsible for researching and contacting all parties eligible to receive the inheritance under the law, and filing a report to the court as to which parties are making a claim for inheritance.

In many cases, the family members that may be receiving an inheritance may agree as to which family members should receive the inheritance. In such cases, an inheritance lawyer would then draft up waivers for the surviving family members that wish to waive their right to inheritance.

For example, if an individual died and left a surviving spouse, the surviving children of the decedent may wish to waive their right to their portion of the inheritance in order to leave their parent with their spouse's full estate. Inheritance lawyers also handle drafting all necessary legal paperwork, and representing their client in front of a court of law during the probate process. 

Are Inheritance Laws Complex?

As noted above, inheritance laws vary by state. Further, the laws of inheritance will also be impacted if the state is a community property estate. In community property states, a surviving spouse is entitled to one half of the marital property. Typically, a surviving spouse may elect to receive their share of the decedent's estate under the laws of intestacy or under the community property laws of the state.

Further, there are other estate planning tools that an individual may utilize, other than drafting a will, that may impact the property that may be passed by the laws of inheritance. For example, an individual may give away property prior to their death, or may form a trust and place what would have been property of their estate in that trust for the benefit of another person. Additionally, other laws may impact inheritance laws, such as military retirement  or survivor benefits, life insurance contracts, and employee retirement plans. 

What Is Inheritance Succession? What Is Intestacy?

Inheritance succession refers to the order in which a person's relatives receive their property upon their death, if the decedent fails to leave a will detailing how they wish for their property to be distributed. Inheritance succession does not generally pose an issue in cases involving a will. Those who do create wills generally leave their property to the people you would expect to inherit, such as spouses, children, and other close relatives.

Wills can be legally contested if specific family members are cut out of the will. Additionally, spouses may petition to inherit a share of the decedent's estate if they have been cut out of the will. This is especially true for states which have determined that you cannot legally exclude your spouse from your will. However, wills are generally observed as written when they exist. Because of this, inheritance succession is more likely to become an issue when no will exists and a probate court must decide who inherits.

In legal terms, dying without leaving a valid will is referred to as intestacy. Each state has its own laws regarding intestacy intended to distinguish the differences between total intestacy, and partial intestacy. Total intestacy refers to dying with no valid will at all, while partial intestacy involves a will that does not correctly dispose of all of the property belonging to the decedent.

According to general intestacy laws, the decedent's spouse will most commonly have first rights to property distribution and inheritance. After that, most states follow the lines of the decedent's descendants, and their children. If there are no living family members, the decedent's property will likely escheat to the state. This means that the property will generally go to the state in which they died. This will be further discussed later on.

What Is The Order Of Inheritance Succession?

To reiterate, inheritance succession varies from state to state. Each state maintains its own laws governing the distribution of property left behind by those who died without leaving a valid will. Most states have similar laws, although some will vary more than others.

Most states adhere to the Uniform Probate Code, or “UPC.” The UPC is a set of model laws which have been drafted and reviewed by a group of national experts. These laws are intended to specifically address issues associated with wills, trusts, and estates. The intention of the UPC is streamlining the probate process, which makes estate and probate administration more simple and less expensive across the board. Several states have adopted the UPC in an attempt to standardize estate administration across state lines.

According to the UPC, close relatives always come first in the order of inheritance. Generally speaking, the surviving spouse is first in line to inherit, with children and grandchildren next in line. If the surviving spouse has any minor children, they may inherit the whole estate. Adult children may receive a share of inheritance.

From there, the order of succession is generally as follows:

  • Grandchildren;
  • The decedent's parents;
  • The decedent's siblings;
  • The decedent's nieces and nephews;
  • The decedent's grandparents; and
  • The decedent's aunts, uncles, and cousins.

Adopted children are treated the same as biological children for inheritance purposes, while stepchildren and foster children are not. Biological children of the deceased who were given up for adoption may not inherit.

How Much Will Each Relative Receive Through Inheritance Succession?

How much each relative will receive through inheritance succession depends on the state in which probate is conducted. Although the order of succession is somewhat uniform throughout the states, the laws regarding how the estate is apportioned in terms of percentages can vary widely.

As previously mentioned, if there is a surviving spouse and children, they are most likely to inherit the entirety of the estate. Otherwise, the property will go to other relatives. According to the UPC, estates are generally apportioned as follows:

  • Surviving Spouse: The spouse receives the entirety of the estate, or the majority of it. However, this portion will be reduced if there are surviving children;
  • Surviving Children: The children of the decedent may receive the whole of the estate if there is no surviving spouse;
  • Surviving Parents: If no surviving spouse or children exist, the parents of the decedent may take the entirety of the estate; and/or
  • Other Relatives: The decedent's siblings will take the estate if no other parties exist. After this, the line of succession is followed until there are relatives who can inherit.

If succession laws are violated, whether intentionally or accidentally, the offender could face criminal charges. Some examples of punishments for such charges include fines, and/or time spent in jail.

A few examples of the most common ways in which succession laws may be violated include, but may not be limited to:

  • Attempting to claim property in a manner that deviates from that state's succession laws;
  • Claiming property that rightfully and lawfully belongs to someone else, such as another relative;
  • Claiming more assets or funds than what they are entitled to; or
  • Failing to return property that was incorrectly distributed.

What Else Should I Know About Intestacy And Inheritance Succession Laws?

As previously mentioned, the term “escheat” refers to when a person's property reverts back to the government after a specific event. Generally speaking, escheat or escheatment laws allow the government to claim title to a certain piece of property where there are no other rightful beneficiaries to inherit said property.

Escheated property generally passes to the state governments, although state laws may vary in terms of the exact details of this process. State governments may provide that escheated property will be distributed to some designated political subdivision of the state. Alternatively, the estate can be disposed of in some other manner.

An example of this would be how escheat laws provide a significant source of revenue for more rural states. Such laws allow property that would otherwise be unused to be put into active use, which often generates additional revenue for local counties or jurisdictions. .

According to escheat laws, the state is entitled to take the property of those who die intestate. The existence of heirs does not necessarily prevent the government from taking property by escheat. If such heirs are considered to be legally incompetent to take property by inheritance, the circumstances may be treated as if there were no heirs. In such cases, the property will likely escheat back to the state.

There are various timetables and deadlines associated with property escheatment. An example of this would be how in the state of California, any property that becomes abandoned is classified as “unclaimed property”. If the property remains unclaimed after three years, it will escheat or transfer to the California government. The state will most likely provide notice of escheat actions, which are published in county newspapers. This action provides a chance for interested parties to respond formally in terms of ownership with the states' lost property departments.

What is Wrongful Interference with a Gift or Inheritance?

Inheritance describes the process and rights a person has to various types of property upon someone else's death, such as a spouse or close relative. Typically, the inheritance of property is indicated in the decedent's (person who passed away) will. However, it is possible to inherit property without the existence of a will. Unfortunately, receiving a gift or inheritance can be complicated by wrongful or tortious interference.

Wrongful or tortious interference refers to a situation in which a third party intentionally causes a contracting party to commit a breach of contract. This might be accomplished through inducement, or by disrupting a party's ability to perform their contractual obligations. An example of this in terms of gift and inheritance would be if you are expecting a gift or inheritance, and another party dissuades the donor from giving the gift or inheritance. 

This cause of action may go by many other names, including:

  • Intentional or unlawful interference with contractual relations;
  • Interference with a contractual relationship;
  • Interference with a contract; or
  • Inducement or procurement of a breach of contract.

Generally, the third party who is interfering with the contract ( the “tortfeasor”), is an individual that was not a party to the contract and is interfering for their own financial gain. The intended recipient of the gift or inheritance may have a claim against the tortfeasor for tortious interference.

What are Some Examples of Wrongful Interference with a Gift or Inheritance?

Some common examples of interference include:

  • Interfering with the making of a will or gift;
  • Inducing the donor to alter a will or gift;
  • Concealing or destroying a will or documentation of a gift;
  • Taking away the donor's property, so that there will not be enough left for the gift or inheritance; or
  • Breaking a promise made to the donor to convey property in trust to the intended recipient.

What is Required to Prove Wrongful Interference?

In order to sue for wrongful interference, the plaintiff, or the non breaching party, will need to prove that the tortfeasor acted intentionally, both with regards to their own actions and the resulting contractual breach. This means, the tortfeasor must have known about the contractual relationship, and committed the breach anyway. 

The specific elements for proving wrongful interference vary from state to state, but in general, a plaintiff will be required to show:

  1. A reasonably definite expectation to receive the gift. This means that but for the interference, the plaintiff would have undoubtedly received the gift or inheritance. This requires more than just a possibility of receiving a gift or inheritance, but does not require an absolute certainty. Typically it is not enough to just assume that because a plaintiff is a close family member, a reasonably definite expectation exists. Solid proof is generally required to show that a gift or inheritance will be made to the intended recipient;
  2. A valid contract or contractual relationship existed, of which the tortfeasor had knowledge;
  3. The tortfeasor intended to induce one of the contracting parties to commit a breach, and was not otherwise privileged or authorized to induce breach; and
  4. The contract was in fact breached, and the plaintiff suffered specific economic damage as a result of the breach.

Essentially, the plaintiff will need to prove that the tortfeasor's actions were wrongful. A tortfeasor's actions are considered wrongful if:

  • They acted with ill will or intent to cause the recipient not to receive the gift or inheritance; and
  • They actually utilized fraud, undue influence, or misrepresentation to interfere with the gift or inheritance.

What are the Remedies for Wrongful Interference?

Before filing a lawsuit, the intended recipient might first consider contesting the will, proving the terms of a missing or lost will under the probate code, or submitting a new will under the probate code.

The remedies that may be available to plaintiffs in a wrongful interference case are similar to the damages available in a breach of contract claim. However, there are several different types of monetary remedies available in wrongful interference claims. The most common types of damages available include:

  • Compensatory Damages: This type of remedy is intended to compensate the non-breaching party for losses suffered as a result of the breach;
  • Restitution: These damages are intended to restore the injured party to their original position and do not include lost profits or earnings;
  • Punitive Damages: Punitive damages are intended to punish the offending party, or the tortfeasor. Punitive damages are generally reserved for cases in which the other party behaved in a morally reprehensible way; and
  • Equitable Remedies: Equitable remedies may consist of an injunctive order which would prevent the tortfeasor from benefiting from their interference.

When will Damage not Result From Wrongful Interference?

It is possible that the donor, in the absence of any interference, did not have enough property to make the gift or inheritance. In such cases, no damage would result to the intended recipient, and no claim may be filed against the tortfeasor.

Generally, it is very difficult to win a claim against a tortfeasor because it is often difficult to prove that it was in fact the tortfeasor's actions that caused the donor to change their mind. This is partially because there really is no need for an explanation from someone as to why they are giving a gift or inheritance. 

Thus, the same logic applies when they retract from giving the gift or inheritance. Additionally, proving fraud, duress, or misrepresentation is not easy and often requires a lot of time and money to gather all of the facts in order to support such claims.

Do I Need an Attorney for Help with Wrongful Interference Claims?

If you have experienced wrongful interference, it would be in your best interest to consult with a well qualified and knowledgeable estate attorney in order to protect your rights. 

Additionally, an experienced estate attorney will be able to help determine if you have a valid legal claim, and what remedies you are entitled to. Also, the attorney will be able to represent you in court, if necessary. 

Is Inheritance Considered Marital Property?

As previously noted, inheritance and gifts that are received by one spouse during a marriage remain separate property so long as they are not used to benefit the marriage or the other spouse. An inheritance is considered separate property unless the receiving spouse combined it with community marital property.

When individuals marry, not every piece of property or asset owned by one spouse becomes the joint property of the other spouse. Although they married, a spouse's separate property belongs to just them.

An inheritance given to one of the spouses is an example of separate property. Whether that inheritance was received prior to the marriage or during the marriage has no bearing on it being separate property.

The other spouse has no right to such an inheritance either during their life or after their death. However, an inheritance may be considered marital property if the spouses inherited the property jointly.

In addition, an inheritance could be considered community property if the court states in a marital property agreement that property or money inherited by one spouse is to be considered joint property of the couple.

Can Inheritance Turn into Marital Property?

Yes, it is possible for an inheritance to turn into marital property. This may occur when a spouse commingles the inheritance money or assets with other community property or marital assets.

For example, if one spouse places inheritance money into a joint bank account, it then becomes community property. In addition, if the spouse takes their separate inheritance money and purchases a family residence which has both of the spouses' names on the deed, then that home which was purchased with inheritance money becomes community property, or marital property.

If an inheritance is received during a marriage, a court will examine a number of factors in order to determine if that inheritance was intended to be separate property or community. These factors may include:

  • If only one spouse was named as a beneficiary of the inheritance in a will;
  • If the inheritance was held in a bank account separate from marital funds;
  • Whether the inheritance was used to purchase marital property, such as a family home or vehicle; and
  • Whether the inheritance money was ever commingled with marital property and, if it was, what type of asset the inheritance was commingled with.

How Can I Keep My Inheritance from Turning into Marital Property?

There are ways in which a spouse can keep their inheritance from becoming marital property. In order to avoid this, the spouse should not commingle funds with marital property and should keep those funds in a separate account.

If the spouse wishes to keep an inheritance separate, they should keep the money received in a separate bank account under their own name alone and not in a joint bank account. This will prove that the spouse's intent was to keep that inheritance as separate property.

It is important to note that if a spouse shares a portion of their inheritance, it is typically presumed that they meant to share all of the inheritance money with their spouse. The spouse who received the inheritance may be required to prove that it was not their intent to share the entire inheritance.

Another way to avoid turning an inheritance into marital property is to enter into an agreement prior to marriage or during the marriage. The agreement should state that the specific inheritance is intended to be separate property of the receiving spouse and is not intended to become marital property. The receiving spouse simply has to prove their intent to the court.

How Can I Prove an Inheritance was Separate Property?

In order to prove that the inheritance which a spouse received was separate property in the event of a divorce, they would have the burden of convincing the court that they intended the property to be separate, despite any mistakes the spouse may have made in handling the property or funds. The spouse may be able to provide evidence that they commingled the inheritance money into their marital assets by mistake and they did not intend to commingle those funds with any marital property.

If the funds or property were kept in the inheriting spouse's name and in a separate bank account, that can also be proof of the intent to keep the property separate. 

How Can an Inheritance Lawyer Provide Help?

If you believe that you may be subject to an inheritance, it is in your best interests to contact a well qualified and knowledgeable inheritance attorney in your area. An experienced inheritance lawyer will be able to help you determine your portion of inheritance. Further, an attorney will also be able to represent your interests in court, as necessary. 

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.