gtag('config', 'G-3NNZ63HXZT');

A parent’s new spouse and inheritance

Posted on July 18, 2022

It seems natural that parents should not outlive their children. If things go as planned, children will inherit their parents’ estates when they die, that is, if the parent leaves a will or other estate plan that benefits the children.

If that parent remarried sometime prior to their death, and there is no will, you may be wondering if you will inherit from your parent’s estate at all. Does the new spouse get to keep everything?

More than 15,000 probate cases were filed in Missouri last year. Nearly 3,000 of them were filed in St. Louis County and the City of St. Louis alone. Among them, hundreds of children of remarried parents may be unsure whether they inherit anything. At TdD Attorneys at Law, we work with many clients whose parent has died, without a will, to protect your rights under Missouri law. We proudly serve clients in St. Louis, Missouri.  

What Happens When Someone Dies Without a Will?

When someone dies without a valid will, they die “intestate.” Instead of having their will filed with the probate court and administered by the personal representative they name in their will, the court appoints a personal representative, and a judge makes the decisions regarding the distribution of the person’s estate.

The court adheres to Missouri’s law of intestate succession. The law specifies who is entitled to inherit from the estate when there is no will specifying the decedent’s wishes. The estate’s assets and debts subject to probate are inventoried, debts are satisfied, and the residual is distributed among the heirs according to intestate succession.

What Is Not Subject to Probate in Missouri?

Many of the assets held in the name of the decedent alone are generally subject to probate. However, not all assets are. For example, those items with a beneficiary, transfer on death, or title on death designation go directly to the beneficiary. Examples include proceeds from a life insurance policy, payable-on-death bank accounts, retirement account payouts, and vehicles with a transfer-on-death beneficiary.

Real estate with a transfer-on-death designation or a beneficiary deed will bypass probate. So does any property the decedent owned in joint tenancy or tenancy by the entirety, which is often the surviving spouse of the decedent.

Also, any assets that were transferred to either a revocable or irrevocable living trust during the decedent’s lifetime are not subject to probate because they are assets of the trust, not the individual.

What Is Missouri’s Intestate Succession Law?

If a parent dies and there is no surviving spouse, the children inherit the entire estate. If there is a surviving spouse who is also the parent of surviving children, the spouse is entitled to the first $20,000 of the estate and one-half of the remaining balance. The other half of the remaining balance is distributed equally among the surviving children.

If the surviving spouse is not the parent of the decedent’s children, the spouse receives one-half of the probate assets, and the children receive the other half. Therefore, the spouse is not entitled to receive everything if your parent remarries under Missouri’s intestate succession law. Remarriage affects your inheritance but does not eliminate it entirely.

Who Is Considered To Be a Child of the Decedent in Missouri?

Missouri specifies who has standing as children in intestate succession to protect children’s inheritance rights.

The biological children are entitled to inherit from the intestate estate, so long as they were not legally adopted by someone other than the decedent’s spouse. So, if you were adopted by a stepparent during their marriage to your biological parent, you still inherit from your biological parent, even if your parent and the stepparent were not married at the time of your biological parent’s death.

If you were conceived by the decedent but not born before their death, you are still entitled to inherit from their estate. Additionally, if you were born during your parent’s marriage, you are assumed to be the biological child of both parents and are entitled to inherit. However, if paternity was established to be someone other than your mother’s husband, you are not entitled to the estate of your mother’s husband, but you are entitled to benefit from the estate of the father established by paternity.

The reason you are not otherwise able to inherit from the estate of a biological parent if you were adopted by someone other than your parent’s spouse is that adopted children in Missouri are entitled to inherit from their adoptive parent’s estate, just as biological children are. Foster children and stepchildren not adopted by the decedent are not entitled to inherit under the law of intestate succession.

The share of the estate a child is entitled to inherit who dies prior to the parent’s death is passed on to their children.

Turn to Trusted Legal Counsel

Although Missouri law protects children’s inheritance rights, the path is not always a clear one. Hiring an experienced probate attorney helps ensure that your legal rights are protected, that the estate is valued appropriately, and that you receive what you are entitled to receive.

At TdD Attorneys at Law, we have helped many children in your situation in St. Louis, Missouri, receive their share of a remarried parent’s estate. We can help you too. Just call our office now to schedule a case consultation.