If Your Spouse or Parent Dies Without a Will

You may not inherit what you think is yours: Georgia’s intestate succession laws

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If you die without making an estate plan, then, as the saying goes, the state has one for you. Dying without a will is known as dying “intestate,” and every state has its own laws regarding intestate succession and how your property is distributed. You may be surprised to learn that in Georgia, these laws don’t follow the guidelines that many states use, and can be particularly unfavorable to a surviving spouse.

“That’s one of the bigger surprises for people. ‘If I’m married and I die without a will my spouse doesn’t receive everything?’” Alpharetta attorney Loraine DiSalvo says. “Not here.”

The default rules of intestacy in Georgia dictate that the surviving spouse does inherit the entire estate if there are no living children or grandchildren of the deceased. If there are children or grandchildren, then the estate is divided into shares, with the spouse receiving a minimum of one-third of the estate, and the remaining two-thirds divided among two or more children.

Intestacy rules apply only to assets in the probate estate, DiSalvo says, and there may be other ways for a surviving spouse to succeed an intestate partner in owning their assets. “You have to look at beneficiary designations, and what they own by right of survivorship; these assets would not be included in the probate estate.”

A Year’s Support

In a case of disinheritance, “Georgia is the last state remaining in the country that does not have a minimum share for a surviving spouse,” DiSalvo says. Most states allow for what’s known as an elective share, whereby a disinherited spouse may bring an action in probate court for their rightful portion of the decedent’s estate. “What we have instead is something called a year’s support. This is a statutory right held by a surviving spouse, as well as minor children, where they can come forward and say, ‘I’m entitled to enough assets to support me for a year.’”

The rule allows the surviving spouse to get in line in front of other creditors, and can override a will. A petition must be submitted to the probate court specifying what assets are being sought. “If there’s no one contesting the amount, the surviving spouse can ask for 100 percent of the probate estate,” says DiSalvo. “So, one year is not really the standard, unless there’s a contest. If other heirs or creditors challenge the amount being requested, then it becomes the court's job to determine if the amount is reasonable, given the spouse's other assets and income. If the amount is more than reasonable, the court should reduce the amount to what would be reasonable for a year.”

It's noteworthy that the right to a year's support is in addition to anything left to the spouse in a will. However, the will can include language that states that the bequests in the will are made in lieu of year's support. In that case, the spouse is forced to choose whether to make the year's support claim or take the bequests provided by the will.

However, this doesn’t mean that a particularly intent spouse couldn’t make arrangements to restrict what passes to their surviving spouse. Because the year’s support rule applies only to probate property, it’s possible to arrange for all assets to be outside the probate estate. “There are ways to avoid the year’s support rule,” DiSalvo says. “In fact, we’re known as the only state where you could, if you tighten up planning, actually disinherit your spouse. That’s a bit of a shocker for most people.”

With so much at stake, it’s best not to leave distribution of your assets to chance. Talk to an experienced estate planning attorney to make a plan in accordance with your wishes. If it’s already too late for planning, and you need help with assessing a year’s support claim, talk to an experienced probate attorney

Georgia

“Georgia is the last state remaining in the country that does not have a minimum share for a surviving spouse.”

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