What happens if I don’t have a Will?

I will refer you back to my first post in this series here.  Remember that only property in your sole name with no joint owner and no beneficiary designation passes through Probate and is controlled by your Will (if you have one).

I am suddenly reminded of a Frank Sinatra song and a certain character portrayed by Ed O’Neill.  Love and Marriage…  The Bundy’s provide a useful example.

This entry will discuss what happens to that property if you (Al Bundy) do not have a Will.  Al, ever the do-it-yourselfer, did not want to pay an attorney to draft a Will.  I mean, whats the worst that can happen… Besides, he’ll be dead!

Although the law is different in each state, you will note a common theme among each of them for married parents-the surviving spouse has to share with the kids.

Another important theme to note is that where the property goes depends entirely on who survives you and their relationship to you.

Although I do not intend to cover this exhaustively, I will cover the most common scenarios.  In some cases,  I have simplified the law, but only to make it more digestible.

Tennessee.

Unmarried and no Children.  If Al passed away unmarried and was not survived by the kids (Peg and the kids were killed in an unexplained car accident–the brakes failed–Al was at work, he swears!), Al’s property passes to his parents if living.  If Al was not survived by parents, then his property is shared by his living siblings and the children and descendants of any deceased siblings (nieces and nephews).

As it happens, the only thing Al had left at his death was his prized bowling ball–it literally had to be pried from his cold dead fingers–his last act was to bowl a strike.  His heirs still take turns on bowling nights rolling it down the gutter and cursing his name for not having left them more.

Married without Children.  Al passes away survived only Peg.  Al and the kids died after a particularly nasty case of food poisoning after eating one of Peg’s casseroles.  Apparently you can die from nicotine toxicity by ingesting large quantities of cigarette ashes–who knew!  Anyway, Peg inherited everything.

Married with Children.  This time, only Al dies.  He was survived by Peg, Bud and Kelly.  Peg and the kids share equally in Al’s estate, inheriting 1/3 each.  Al may be smiling from the grave that Peg has new landlords–Bud and Kelly, but Peg is not happy.  Bud and Kelly take every opportunity to let Peg know that she should be happy that they let her continue to live in the home, and that she should be very nice to her as they get to pick her next home…

Although Peg shares with the children, Peg’s share cannot be less than 1/3.

Peg’s Spousal Rights.  Although this is really the subject of a separate article, Peg is not without some rights to increase the amount that passes to her.  These are known as spousal rights and include an “elective share,” “year’s support,” and “exempt property.”

Arkansas. Arkansas is a throw-back.  At least with respect to the rights of surviving spouses, Arkansas follows rules that nearly every other state in the Union has simplified and modernized.

In most instances, Arkansas and Tennessee follow one another (closely enough).  There are some differences.  I will highlight them.  A detailed essay on the subject can be found here.

Unmarried and no Children.  Here, Arkansas and Tennessee law are practically in accord.  There could be some differences for inheritance by distant relations, but that is outside of the purview of this article.

Married without Children.  A primary difference here is that under both Tennessee and Mississippi law, the spouse inherits everything.   However, in Arkansas, there is a change depending on the length of the marriage.  If Peg and Al were married for less than 3 years, then Peg shares with Al’s family as set out in the preceding paragraph (subject to Peg’s spousal rights).  If Peg and Al were married for more than 3 years, then Peg inherits everything.

Married with Children.  Subject to Peg’s spousal rights, the surviving kids and grandkids inherit everything.   This is a substantial departure from Tennessee and Mississippi (i.e., from bad to worse).

Peg’s Spousal Rights.  Peg does have some archaic (but nevertheless powerful) spousal rights in each of the above scenarios.  Basically, Peg will take between 1/3 and 1/2 of Al’s estate through what is known as “Dower” rights.  Al would have the same rights if he survived Peg, but they are known as “Curtesy.”

Mississippi.

Again, Mississippi, Arkansas and Tennessee more or less follow one another.  There are some differences.  I will highlight them in contrast to Tennessee Law.

Unmarried and no Children.  Mississippi, Arkansas and Tennessee law are essentially in accord here.  One difference is that parents and siblings will share in the inheritance.  In both Tennessee and Arkansas, both parents have to be deceased before siblings, nieces and nephews inherit.

Married without Children. Mississippi and Tennessee law are in accord here.  The spouse inherits everything.

Married with Children. In Mississippi, Peg is treated as if she were a child and she shares equally with them.  This is only different if there are more than two children.

Peg’s Spousal Rights. Mississippi and Tennessee are substantially similar with respect to Peg’s rights.  There are some significant variances, but they are not worth highlighting in this article.

Conclusion.  If you take nothing else away from this, please remember that the bottom line is that even a very simple Will can avoid a whole host of potential issues.

A primary one will be highlighted in my next entry–Having a Baby.

Stay tuned.

Robert D. Malin
Memphis, Tennessee

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