Limited Inheritance in Unusual Circumstances

Limited Inheritance in Unusual Circumstances

Limited Inheritance in Unusual Circumstances

State statutes of descent and distribution are usually supplemented by other statutes or court rulings that limit or prohibit inheritance in unusual circumstances. This article discusses some of those unusual circumstances.


In what is known as an advancement, a person can transfer property to his or her expectant heirs with the intent that the property be deducted from their expected inheritance, if any. Because of possibility of fraudulent claims in this regard, most states require an advancement to be memorialized in a contemporaneous writing. An advancement may be either a gift or a loan, depending on the circumstances. A gift is deducted from the amount the heir would otherwise inherit. A loan must be repaid to the intestate’s estate.

In a related matter, most states allow an assignment of an expectancy. An expectant heir may contract to transfer his or her interest in an expected inheritance to another person or entity. If an expectant heir has assigned his or her interest in an inheritance to another person or entity, that other person or entity takes the inheritance.

Renunciation or Disclaimer

Sometimes an heir does not want some or all of his or her inheritance. There are several reasons why this may be so. The heir may want to avoid taxes or the payment of creditors. The property to be inherited may be of little value to the heir, or even a liability. The heir may also be well-off and simply want the property to go to another family member.

When an heir does not take an inheritance, it is known as either a renunciation (a “return” of the property) or a disclaimer (a “passing on” of the property). The renunciation or disclaimer usually means that the heir is treated as having predeceased the intestate. The inheritance passes to the next person in the statute of descent and distribution.

Public Policy

In some circumstances, the state, for public policy reasons, may limit or prohibit an inheritance.

Sometimes two or more potential heirs die at almost the same time, such as where there has been a common accident. Because of the difficulty or impossibility of proving which of the two or more potential heirs died first, second, or third, and so on, most states have adopted the Uniform Simultaneous Death Act. Under the Uniform Simultaneous Act, if one potential heir does not clearly survive the another potential heir by a specified amount of time, both are treated as predeceasing the other, with equal shares of their jointly-owned property going to the heirs of each potential heir.

Public policy also prohibits a person who has intentionally killed from benefiting from that act. If the killer would inherit as the result of the victim’s death, the killer may be treated as predeceased.

Public policy may also prohibit inheritance by an alien, unless there is a treaty between the United States and the relevant foreign country permitting such an inheritance.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.