QUESTION
What should she do if she was informed by his children she had to leave the house and had nothing for her because they were just married six months?
Asked on Dec 27th, 2012 on Estate Planning - California
More details to this question:
A friend of mine was married two months ago, not knowing her husband was ill. Three weeks after they were married, he had liver failure and passed away Christmas day 2012, two months after they were married.
19 ANSWERS
Business Attorney serving Orem, UT
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Kirton & McConkie A Professional Corporation
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The length of the marriage does not give the kids a right to kick her out of the house. The real question here is who owns the house now that the husband passed away? If the house was in his name and his name alone, the house will pass to whoever is designated in his estate plan. If he had no plan, then his estate will be split between his new spouse and his children from a prior marriage. The first 75k in value goes to the new spouse, along with ? of the rest of the estate. The other half goes to the kids from the prior marriage. The answer to the question of who gets the house (and gets to live in it) depends on what plan the husband had in place.
Answered on Jan 07th, 2013 at 2:42 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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She needs to see a probate attorney very rapidly. Whether she was married for two days, or two years, or for that matter two decades may well be irrelevant under the laws of intestacy of the state.
Answered on Jan 07th, 2013 at 2:40 PM
Elder Law Attorney serving Savannah, GA
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Elder Law Office of Mark Schaefer PC
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She needs to see an attorney right away. The length of the marriage is irrelevant to her inheritance rights.
Answered on Jan 07th, 2013 at 2:38 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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She should consult with an attorney to figure out where she stands and what her options are. There is a lot of information left out of your summary. That needs to be shared, before your friend will know where she stands.
Answered on Jan 04th, 2013 at 9:34 PM
Probate & Trust Attorney serving Seminole, FL
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Law Offices of Phillip Day, P.L.
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Time to consult a probate attorney. Florida law has a unique statute under the Homestead rules which allows the spouse and children to keep the house regardless of what the will may or may not say. This assumes that there are no premarital agreements or some other form of waiver. As always, please consult an attorney to get the proper guidance.
Answered on Jan 04th, 2013 at 9:27 PM
That may or may not be true. She should review all of the facts and relevant documents with a probate attorney to determine what her rights are.
Answered on Jan 04th, 2013 at 9:24 PM
By law, a marriage is legal as soon as the vows are given. She is the lawful widow of the deceased and is likely entitled by law to a share of his estate. However, she may need to take his children to court to obtain that share. If the house is part of the estate, she may have a claim to it as well.
Answered on Jan 04th, 2013 at 9:12 PM
Business Law Attorney serving Livonia, MI
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Gerald A. Bagazinski
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She has certain rights even though they were married for 2 months. In Michigan, she is entitled to her spousal allowance, homestead allowance and exempt property allowance.
Answered on Jan 04th, 2013 at 9:11 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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She should see a lawyer; she may be entitled to support from the estate, to live in the house for up to a year, and to a share of the estate.
Answered on Jan 04th, 2013 at 9:11 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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She should get a lawyer and explain all of the details. Even though the house was in his name, she may have the spouse's claim on a portion of the house. Also, is there a will that designates where the property was to go? Was there a pre-nup? These are all things that a lawyer would have to investigate before giving a proper answer.
Answered on Jan 04th, 2013 at 8:57 PM
She should see an attorney. She is the wife of the deceased and has certain rights.
Answered on Jan 04th, 2013 at 8:55 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Most important: she should not move out of the house. She should inform them to contact her lawyer, and she should plan to file a spousal property petition if he had no will. If she does move out, she likely will not have the right to return and may lose out. If he has no will that mentions her, then she probably is entitled to get all of the community property, if any, and a third of the rest!
Answered on Jan 04th, 2013 at 8:54 PM
Thomas Edward Gates
Because she was married to him, regardless for how long, she may remain in the home. You did not indicate whether there is a will. If it is a community property state, statutes control distribution of an estate without a will. In that case, the widow get 1/2 of his estate, plus her 1/2 half, and the children share in the 1/4 of his estate remaining. The children have no say in the matter. Note that the wife will be appointed Administrator of his estate if she wishes to be. Otherwise, she would have to agree to the proposed Administrator.
Answered on Jan 04th, 2013 at 8:53 PM
Probate Attorney serving Palatine, IL
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Law Offices of Robert H. Glorch
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The length of their marriage is really irrelevant. What is relevant is how his assets are titled, whether he had a Will of Trust and if, so, what it says. She has special right as a spouse in an estate. She should contact a probate attorney to discuss her rights and what steps she might take.
Answered on Jan 04th, 2013 at 8:52 PM
Chances are that the children are wrong. It does not matter how long they were married. She has the same rights as other surviving spouses. She needs to see the Will, any Trusts and the Deed for the house.
Answered on Jan 04th, 2013 at 8:47 PM
She should hire an attorney, she is his wife and she has all the rights whether they were married twenty years or two months. Is there a will, was there a prenuptial agreement, is there a community property agreement, what community assets are there in his estate. She is in the drivers seat, but she needs an attorney to tell her what to do, the sooner she hires one the better.
Answered on Jan 04th, 2013 at 8:43 PM
A widow has statutory rights to remain in the marital home for a period a time following his death. She should open a probate estate and assert her rights, which are extensive, in the absence of a will.
Answered on Jan 04th, 2013 at 8:42 PM
Probate Attorney serving St. Louis, MO
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Edward L. Armstrong, P.C.
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The fact of the matter was that when her husband died they were married. She is thus an heir at law. If he did not have a will she would be entitled to the first $20,000 in value of his his probate estate plus one-half of the balance of the probate estate. The probate estate is comprised only of assets in the deceased person's own name - not jointly held, not insurance proceeds, not trust assets, not "TOD" assets and not "POD" assets. She may have a right to take a portion of the estate if there was a will and she was not mentioned in the will. There is no minimal time a person must be married to be considered a spouse.
Answered on Jan 04th, 2013 at 8:42 PM
Elder Law Attorney serving Hollister, CA
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Charles R. Perry
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The wife should contact a probate attorney to see what rights she has as a "pretermitted spouse" if her husband had a will, or what rights she has under the intestacy laws if no will exists. She may well have a right to part of her husband's separate property.
Answered on Jan 04th, 2013 at 3:47 AM