boat-house-593174_1280In part 2 of our series on dying without a Will in Utah, we will discuss what happens to property owned by a married person after death. This is especially important knowledge for blended families, where a person will want to know how much of their estate will go to their spouse, and how much will go to their children from a previous marriage. Married (or soon-to-be married) persons with children from another marriage should meet with an estate planning attorney if they do not like the rules discussed below, as they must be modified by one or more estate planning instruments, depending on your specific situation.

Married persons (including persons waiting on a divorce decree but not yet divorced at the date of death) will inherit everything from their spouse after their death, as long as the deceased person does not have any living descendants that are not also descendants of the surviving spouse. However, if there are surviving descendants of the deceased spouse that are not descendants of the surviving spouse, then the descendants of the deceased spouse receive everything on a per capita basis (more on that in next week’s post), minus the surviving spouse’s share.

Example: Jim and Jane have three children, Alice, Bob, and Charles. Jim dies without a Will. Jane receives all of Jim’s property.

Example: Jim and Jane have three children, Alice, Bob, and Charles. Jim has another child, David, from another marriage. Jim dies without a Will. Jane will not receive all of Jim’s property, because David is a surviving descendant of Jim but is not a descendant of Jane.

The surviving spouse’s share is the first $75,000 (in 2009 dollars) of the estate, plus a full 50% of the remainder of the estate. 

Example: Jim and Jane are married. Jim has one child, Alice, from a previous marriage. Jane has one child, Bob, from a previous marriage. Jim and Jane have one child together, Charles. Jim dies without a Will. His assets are worth $575,000. Jane receives the first $75,000, plus 50% of the remainder, so she receives $325,000. Alice receives $250,000 of her father’s estate. Bob receives nothing as Jim’s stepchild. Charles receives nothing from his father’s estate, but the Code drafters assume that he will be cared for by his mother, who received a sizeable portion of his father’s estate.

Note: If Jane had adopted Alice (her stepdaughter) before Jim’s death, then for purposes of the Probate Code, all surviving descendants of Jim would also be descendants of Jane, and Jane would take Jim’s entire estate at his passing. Adopted children are considered children under the Uniform Probate Code, but foster children and stepchildren are not.

When calculating the spousal share, the estate’s value includes the probate estate plus any non-probate transfers to the spouse, such as property owned in a joint tenancy with right of survivorship, POD (Pay on Death) accounts, and some types of life insurance policies. If you remember last week’s blog post, this means that the value of the estate for spousal share calculations is the value of “intestate property” plus the value of property transferred to the spouse “by contract.” Any property received by the surviving spouse through one of these non-probate transfers is deducted from the spouse’s share as an advancement.

Example: Jim and Jane are married. Jim has one child, Alice, from a previous marriage. Jane has one child, Bob, from a previous marriage. Jim and Jane have one child together, Charles. Jim dies without a Will. His liquid assets are worth $575,000. Jim and Jane also own a home together worth $200,000 as joint tenants with right of survivorship. Jane receives the first $75,000, plus 50% of the remainder, including Jim’s interest in the home. Since the remainder is $500,000 plus Jim’s $100,000 fractional interest in the home that automatically passed to Jane, the total remainder of the estate is $600,000. Alice receives half of that, at $300,000. However, she has already received $100,000 of that $300,000 in the form of full ownership of the house, so she only takes $200,000 of the remaining assets, and $300,000 passes to Alice. Bob receives nothing as Jim’s stepchild. Charles receives nothing from his father’s estate.

Once again, these rules are only default provisions. They can be modified by prenuptial agreements, Wills, trusts, and other instruments, depending on the specifics of your family and asset profile. If you are married with children from a previous marriage and you do not like these rules, meet with an estate planning attorney to find out how you can make sure your wishes are carried out. 

Next week, we will discuss the way property is divided for deceased unmarried persons.