Spouses have a vested interest in leaving as much financial security as possible for the other spouse once they are gone. Estate planning is the best way to accomplish this but not everyone creates an estate plan. The state has an interest in ensuring the surviving spouse receives a sufficient portion of the deceased’s estate so he/she does not end up destitute. Georgia’s intestacy laws address inheritance rights in the event a person dies without a will or if the will or other estate documents are found ineffective. This inheritance structure is designed to prioritize heirs according to marriage and blood relation. Spouses, because of the close financial ties married couples share, are given a greater share of the estate and are, in fact, guaranteed a portion of the deceased spouse’s property over other heirs. Understanding how the law governs spousal rights to inheritance is important to ensure the surviving spouse receives everything legally allowed.
How Much the Spouse May Receive
The specific amount the spouse can receive depends upon the existence of other related heirs. If there are no children or grandchildren, the spouse takes the entire estate. If there are children, the surviving spouse and children will split the estate evenly, with the descendants of any deceased child taking that child’s share. In no event shall the surviving spouse receive less than one third of the estate.
In addition to the estate distribution discussed above, a surviving spouse and his/her minor children also have the right to ask for a year’s worth of support from the estate. However, this is not automatic; and a petition must be filed within two years of the deceased’s death to be eligible to receive this portion. Failure to do so will result in the loss of the right to a year’s support, as will the death or remarriage of the spouse before the petition is filed and a minor attaining age 18, dying, or marrying before the petition is filed. The specific amount depends upon what is required to support the spouse and/or minor children for 12 months, which will vary by person and is determined by the Probate Court. It should also be noted that the surviving spouse can take real property free of property taxes and property tax liens, which could result in property tax savings for the surviving spouse as well. A year’s support is available regardless of the terms of a will (with certain limited exceptions) to all surviving spouses and minor children.
In fact, the surviving spouse can ask for more than one year’s support; and a court will typically grant it, unless an objection is filed by an heir or creditor. These objections normally claim the amount requested is excessive, and a hearing will be conducted to determine what amount of property would be sufficient for a year’s support. Importantly, a year’s support is a preferred claim in an estate and will be considered before claims of other heirs and creditors, except for mortgages. Mortgages are typically a deed to secure debt, and this interest is owned by the lender — and not the deceased. Thus, this obligation cannot be bypassed.
A petition for year’s support is an important part of enforcing a surviving spouse’s rights, but this area of law can be tricky to navigate. Working with an experienced estate attorney is critical to a successful outcome.
Adjustments subsequent to the death of a spouse cannot be understated, and dealing with all the issues of an estate can be overwhelming. You need sound legal advice at this time, and the Atlanta estate planning attorneys at MendenFreiman are here to help you get the support you and your family need during this difficult time. Contact us today to schedule a consultation.