When you leave your property to any person, including your spouse, they have no obligation to then assure that someone else inherits from them. If you want to make an arrangement that obligates someone to provide your property to another after your death you must make special legal arrangements to do that.

The easiest way to accomplish this is to create a living trust and move the property into the trust. The trust is called a living trust because it goes on living after you die and is not a part of your probate estate. The property passes in accordance with the terms of the trust, which states to whom the property is to be distributed.

If there was no trust or will then the property would be subject to state laws which would dictate that at least a significant portion, if not all of the estate, must be distributed to the surviving spouse. The only way to prevent such a result would be for the surviving spouse to sign a waiver of their statutory rights under state law.

If there is a will it must be probated.  If the will was made prior to marriage then it must indicate an intent that it stay intact in spite of any subsequent marriage.  Even if such intent is present the rules stated in the prior paragraph regarding absence of a will would apply, rendering a will an ineffective means for assuring that your children will receive an inheritance in lieu of a surviving spouse. A trust operates outside of any probate and the statutory rights guaranteeing a share to a surviving spouse do not apply.

Another alternative occurs in cases where a couple owns real estate together with a right of survivorship.  This right allows whichever spouse who survives the other spouse to inherit the property outside of probate. If one spouse wishes their children to inherit their own share of the property they can do so by severing the survivorship right and deeding it to the child/children. This can be done without obtaining permission from the other spouse.  This requires assistance from an attorney and is a less expensive means for accomplishing the inheritance by the children than a trust.

Any questions or need legal help please call 623-628-1110 Attorney Michael G. Kelly, Arizona Mobile Attorneys