Main aspects of succession in the United States

Testate Succession:

In the United States, the leading principle is the total freedom of testator when drafting his or her will. There are no limitations except regarding the rights of the spouse which vary according to the laws of each State.

In this sense there are two principles of succession laws: Community Property used in Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington, Wisconsin and Alaska; and the Common Law used in the other 41 states.

The principle of the community property is that all the goods acquired by the spouses during marriage belong to both of them, including the gains obtained from their work, goods purchased with their salary and the individual goods that one of the spouses gives to the community. However, the spouses may maintain the individual property of the goods received in inheritance or as donation, the goods acquired before marriage and the ones acquired during marriage provided a Prenuptial Agreement exists. Under this principle, each spouse is owner of half of the goods of the community, therefore, each spouse may dispose of his or her half as he or she wishes by means of a will,.

The principle of common law does not establish that each spouse is owner of half of the goods of the community, on the contrary, it sets that property over goods will be determined by the name that appears on the property title of the good or if the title is irrelevant, by means of determining who paid for it. However, the surviving spouse is protected from being completely disinherited since he or she is entitled to receive a share of the property of the decedent spouse. In the will it can be stated that the surviving spouse receives a smaller share than the one set forth legally, but he or she must give his or her acceptance in writing when receiving such amount, and in case he or she opposes to such dispositions he or she can file a claim before the competent courts.

As opposed to the surviving spouse, the descendants of the decedent are not legally protected from being disinherited. However, when a son has been omitted in a will without intention, for example when the will is made prior to the birth of said son, the law assumes it was by mistake and this son is entitled to a share of the inheritance. If the omission is intentional, the will must establish and justify it expressly.

Intestate Succession:

In case a person dies without leaving a will, each one of the States sets its own norms to cover such absence. The intestate succession laws distribute the estate of the decedent assuming how an ordinary person would make the distribution of his or her estate among his or her relatives.

Although each State has its own succession laws, the National Conference of Commissioners on Uniform State Laws created the Uniform Probate Code (“UPC”) that intends to standardize the norms relating to succession all over the US territory. However, only 18 States have adopted it in whole and some of the remaining States have adopted it partially.

Under the dispositions of the UPC, closer relatives are favored in the estate distribution, adopted descendants are treated the same as biological descendants and in case the decedent does not have surviving relatives; the estate goes to the State.

Whether it is a testate or intestate succession, both have to be subject to a probate process before competent courts to determine the validity of the will if it is a testate succession and to determine the heirs and shares that will be distributed among them in the case of an intestate succession.