QUESTION
If step mother wants nothing and be taken out of will, will she still be entitled to anything if she's not in the will?
Asked on Jan 02nd, 2014 on Estate Planning - California
More details to this question:
She is willing to sign a paper brought up by me and have it notarized stating she wants to give up her survivorship rights. Wondering if there is a particular form to be signed or if this will work, her just signing a piece of paper stating this and having it notarized with witnesses.
10 ANSWERS
Estate Planning Attorney serving Nashville, TN
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Strickland Law, PLLC
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In Tennessee, even if she is not included in the will, she is entitled to a certain percentage of the estate based upon length of marriage, and other items. If the spouse is still alive, they can complete an anti-nuptial agreement. If the spouse is deceased, she can disclaim her right to any asset. She needs to confer with counsel.
Answered on Mar 19th, 2017 at 5:52 AM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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A spouse has a statutory right to renounce a Will and take 1/3 of the estate of the deceased spouse. Any attempt to waive such rights would be in the nature of a post-nuptial agreement. These are not favored. The best chance to enforce a post-nuptial agreement would be with full financial disclosure and after the spouse discusses her rights with counsel. Even with such steps the waiver of rights or agreement could be overturned for unconscionability or not having consideration.
Answered on Jan 07th, 2014 at 4:03 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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It all depends on what the paper says. You really should have this done by a lawyer. If not, the form may not be right, or she might later claim she was mislead about her rights. It is worth doing this properly.
Answered on Jan 07th, 2014 at 5:08 AM
Civil Litigation Attorney serving Ventura, CA
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The Law Office of Robert I. Long
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Caution! In California, a valid disclaimer is treated as though that person predeceased the decedent. That means anyone entitled to receive through her by intestacy would become entitled to her share. That could be her children, parents, siblings, etc. Only the testator can remove her from the will without her heirs becoming entitled to her beneficial interest.
Answered on Jan 07th, 2014 at 5:07 AM
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You need to discuss exactly what you are trying to do and what she is giving up with an attorney. She has some rights she may not be able to give up. It may be best to have a post-nuptial agreement between her and your father. In any event, you should not be involved in it as it may come back against you as influencing her and have no effect at all. See an attorney - better yet, have your father see one.
Answered on Jan 07th, 2014 at 5:07 AM
You don't state whose will is involved in this matter. If it is your father's, even though she signs away her rights in advance, state law may allow her a percentage of the estate anyhow.
Answered on Jan 07th, 2014 at 5:06 AM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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It's not clear what you mean. Whose will, and has the person already passed away? Your will can leave your estate to those people you choose. Your step-mother isn't a natural object of your bounty, if she's not in your will then she's not. Your will is the last thing you will say on Earth; it has to be perfect. Get an estate planning lawyer to help you with it, and get it right.
Answered on Jan 07th, 2014 at 5:05 AM
We need more information. Is there any community property [she gets half as being her portion]? Any property owned in joint tenancy; signed document giving up the right of survivorship sufficient to end joint tenancy but she would still be entitled to her percentage share of the property. It would be worthwhile to have her go to an estate and trusts attorney [with your coming along but it being her attorney] to find out exactly what assets are effected and what can be done.
Answered on Jan 07th, 2014 at 5:05 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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It would work better after the person is deceased and an estate is opened. Then it can be filed with the court and will be a matter of public record.
Answered on Jan 07th, 2014 at 5:02 AM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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In the event you want to accommodate a step mother, to be not entitled to anything under a will or trust, specifically name her and state she takes nothing or receive nothing. No notarized document will be valid.
Answered on Jan 07th, 2014 at 5:00 AM