Close Menu
Naples Estate Planning Lawyer
Naples Estate Planning Lawyer > Blog > Estate Planning > Is Inheritance a Right?

Is Inheritance a Right?

inheritance rights

Is an inheritance a right? Yes, depending on the person making a claim.

In general terms, inheritance rights refer to individuals and parties with a legal right to claim the property of a deceased person. Basically, inheritance rights help determine who gets to inherit your assets when you pass away.

A variety of factors come into play regarding inheritance laws, including the laws of the state in question and the existence of individuals claiming inheritance rights. In Florida, these laws become especially important if you die without a will. Florida has the Florida Intestacy Statute. If you are married and die without a will, this Florida statute gives first preference of inheritance to your spouse. If you are unmarried, then Florida Intestacy Statute gives everything to your “descendants” meaning your children. There are more details to the Florida Intestacy Statute, so working with an experienced estate planning attorney like Naples, Florida-based attorney Jim Nici is important to help sort out inheritance rights properly.

Every situation can present different challenges. It’s quite possible that individuals unknown to the immediate family members may come forward with a claim, such as a child out of wedlock from a previous relationship that was unknown to your family.

If there are no children, then your estate passes to your parents. If your parents have passed away (no parents), then your estate passes to your siblings (brothers and sisters), and if no living siblings, it passes to their kids (your nieces and nephews). Basically, Florida is going down the line of succession. With that in mind, it’s important to understand who has the right to make a claim of inheritance on an estate.

Community Property States

The term “community property” applies to the assets collected by both spouses during their marriage, which each spouse getting 50 percent of the total amount.

A community property state is a state in the USA where a spouse will be entitled to half of all earnings collected during the marriage upon the death or divorce of the other spouse. These states also allow the surviving spouse to contest or challenge the terms of a will or divorce settlement in the event those terms do not meet the 50 percent threshold.

As of June 2022, the list of community property states includes Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.  These 9 states are all “community property” states, meaning that, in the event of death or divorce, spouses are entitled to half of all earnings amassed during the marriage, including any property purchased with those earnings. Alaska is an opt-in community property state, which gives both parties the option to make their property community property. Florida is not a community property state.


In a community property state, if a person passes away while married, the surviving spouse can make a claim of 50 percent of the total assets. In Florida, a non-community property state, Florida’s Intestacy Statute determines that if all your children are from the same marriage or if there are no children, then your spouse will get 100% of the assets. If there are children from different marriages on either side, then your spouse receives 50% and your children receive the remaining 50% in equal parts.

Former Spouses

Depending on the state in question, a divorced spouse may have a right to claim an inheritance, especially if they were named in a will prior to the divorce. Depending on the friendliness between the two former spouses, this may not be negative. Perhaps you may want to name your former spouse as a beneficiary. However, if this is not the case, one of the first things to do in a divorce situation is to update your will so that you choose who you may wish to inherit now that you may not want to leave your estate to your spouse. Again you will want to work with an estate planning attorney to make sure your will reflects your current wishes should you pass away.


For children under 18, individual states may provide some protection of their rights as beneficiaries of an estate. For adult children, however, it depends. In Florida, if you die without a will, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have, whether or not you are married, and whether you or your spouse had children from a previous relationship. If you are simply excluded from the will and inheritance, perhaps because of a poor relationship with your parent who passed, you may be out of luck. The creator of the will made their wishes are known and their choices.  Some adult children have of course been known to challenge a will, hoping that there were errors made in the creation of a will.


While children do have the advantage of some inheritance rights protection, grandchildren do not. Exceptions can be made, however, in the event, that the grandchild in question has no parents and the grandparents included them in their will.

Want to learn more about creating a proper last will and testament or have questions about inheritance rights?  Contact the Nici Law Firm today for further information. Jim Nici and his staff can make sure you have a comprehensive estate plan in Naples, Florida.

Facebook Twitter LinkedIn