Most people who are residents of the community property state of Arizona believe that if they are married and die without a valid Will, their surviving spouse will inherit their entire estate. Well, this mistaken assumption is not always the case. The way property is characterized is important in determining who inherits property in Arizona when its owner passes away.

Community Property or Separate Property

Property owned by a married couple living in Arizona is characterized as either separate or community property depending on when and how it was acquired. Property that is acquired before marriage is classified as separate property. Property acquired during the marriage is presumed to be community property, unless it was acquired by gift, through an inheritance, or if the husband and wife agree otherwise.

The distinction between separate and community property is complicated and can be confusing at times, yet the distinction is very important in determining how property is distributed at death. If you die without a valid Will that is properly signed, notarized and witnessed, the Arizona laws of intestate succession will dictate how the property is distributed based on its characterization as separate or community property.

Unintended Consequences of Dying Without a Will Under the Arizona Intestate Succession Laws

In Arizona, if you are married, and you die without a valid Will, your surviving spouse will inherit your one-half of the community property and all of your separate property if you have no children or if you have children only from your current marriage. However, if you have children from a prior marriage, your one-half of the community property will be distributed to your children ONLY. Your surviving spouse will NOT inherit any of your one-half share of the community property. Furthermore, your surviving spouse will only inherit one-half of your separate property and all of your children will divide the other one-half of your separate property.

The Arizona intestate statutory formula may not reflect the way you would want your assets to be distributed when you die. For example, suppose you are in a second marriage with no children but you have two children from a prior marriage. During your second marriage, you inherit a piece of northern Arizona property where you and your spouse spend every summer. Because the property was inherited, it will be characterized as your separate property. You would likely want that piece of property to pass to your spouse when you die, but without a Will, that property would instead pass to your children and your spouse together. Suppose there were strained relationships between them.

The Arizona intestacy statutes are rigid and inflexible. Having a Will ensures that your assets pass according to your wishes to the people you choose. The legal professionals at Bivens & Associates, P.L.L.C can help you successfully navigate a successful estate planning strategy that will work in the best interests of all of your family members in accordance with your wishes.

By: Robin Cochran Kruger

Questions about wills, trusts, and probate law? Feel free to drop us a line or give us a call here at Bivens and Associates to learn more about elder law, wills, trusts, and probate.