If My Son Dies, Will My Daughter-In-Law Inherit My Estate?

If your son dies, your daughter-in-law may or may not inherit your estate, depending on a number of factors such as state laws , whether you died before your son, and whether you have a trust.

First Scenario: You Died Before Your Son Without a Will

Under New York law, if you died before your son without a will, your son will inherit a portion of your estate as a distributee. Once your son inherits a part of your estate, this will be considered your son’s property already. When your son dies without a will, the surviving spouse is entitled to a portion of your son’s estate as your son’s distributee. Your son can also leave a will, but she cannot completely omit her spouse from inheriting from her, because most states grant spouses a right to elect a share, if they have been omitted from their spouse’s will. In New York, a surviving spouse who has been omitted from or receives less in the will (provided there is no waiver, i.e., usually made in a prenuptial agreement) can elect to receive 1/3 of the net estate (including testamentary substitutes) or $50,000, whichever is higher.

Second Scenario: You Died Before Your Son With a Will

If you died before your son but left a will, your son will inherit from you, as you have dictated in your will. However, once your son receives the property from you, her husband, your daughter-in-law, will inherit that property as a spouse, either as a distributee or in a will with a claim on the spousal elective share, as previously mentioned above.

In order for your son to prevent your daughter-in-law from inheriting your estate, your daughter-in-law should set up a trust which reserves that property inherited from you to other people, such as her children.

Third Scenario: Your Son Died Before You

If your son died before you, then at the time of your son’s death, your son has not received any part of your estate. If you subsequently die after your son, your son’s children will inherit from you, either by themselves or under right of representation, depending on whether you still had surviving children (your son’s siblings). If you died and was survived by your children, your son’s children will take your son’s place and inherit from you under right of representation. If you died and was not survived by any more children, your grandchildren will inherit from you in their own name. In this scenario, your daughter-in-law will be excluded from your estate, unless your daughter-in-law inherits from his children (your grandchildren).

Best Scenario: You Have a Trust

If you prefer to keep your estate within the family, to the exclusion of your daughter-in-law, it is recommended that you establish a trust. Establishing a trust allows you to dictate what will happen to your property, not only after you die, but also generations after your die.

In a trust, you can transfer to the trust the property you would like to reserve for your son, to the exclusion of her husband, your daughter-in-law. You can state in your trust that your daughter-in-law or in-laws cannot receive the principal or income of the trust property. You can initially appoint yourself as beneficiary, with your son as successor beneficiary upon your death, and your son’s children as successor beneficiaries after your son’s death. In this way, you can keep your estate within your family, to the exclusion of in-laws.

Drafting a trust, however, is a complex process. It requires the skill of a trusts attorney to help you draft a customized trust that will suit your needs. If you are interested in executing a trust, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].