If my father planned for separation, does this factor into her claim?

Question

My father passed away last year.  Our stepmother was not named in his will, but she is claiming 50% of the estate. We just found out from my father’s co-workers he was planning to leave her and she had moved out and moved in with her sister at the time of his death. Is this grounds for challenging her claim to the estate?

Ronald Nims · Answer

Ohio only recognizes a persons matrimonial status to be 1. Married or 2. Single. As long as he was married to your stepmother, she qualifies as his surviving spouse and is entitled to 1/3rd of his estate. However, if they had a written or court ordered separation, that takes away her inheritance rights, that would void her rights to any part of his estate.

Michele Ungvarsky · Answer

Unless some legal paperwork was filed, it is very difficult to show intent.  Check with an Estate Planning Attorney in your area.

Edwin K. Niles · Answer

She may be entitled to her half of community property only.  Better see a probate lawyer ASAP.

Brian Haggerty · Answer

Yes, it is. Bring these facts to the attention of the court. Incidentally, she's not entitled to 1/2, she's entitled to, at most, 1/3 of his estate, in Oregon.

James Weiner · Answer

If your father had a will the will may control except to the wife's marital interest in the estate CONTACT A PROBATE ATTORNEY.

Ronald Stutes · Answer

Her claim may in fact be for her one-half of the community property. In Louisiana, each spouse owns one-half of the property acquired during the marriage through the efforts of either spouse. (Gifts and property owned by the marriage are not included.) Since she would be the owner of that one-half, it is not considered part of your father's estate. As far as your father's property is concerned, the will would control, to the extent it is not in conflict with state law.

Mark T. Peters · Answer

What he planned to do doesn't matter.

Erven Nelson · Answer

You need a lawyer to look at the will and the laws of your state to get a good answer.  If the will is valid and leaves her out, there is a good chance that she will get very little (maybe a homestead amount, depending on your state laws).  It is definitely worth fighting.

Randall Romei · Answer

A spouse has a right to renounce the Will.  If she remained his spouse at the time of his death then she is entitled to the spousal right to renounce the Will regardless of the intention of either party.

Jayne Sebby · Answer

Until a couple is granted a divorce by a court, they are considered married.  So your stepmother was still your father's wife at the time of his death.  Many states allow a surviving spouse some part of the estate (what used to be called the widow's portion) but it's certainly not 50%.  If the will is valid, it's unlikely that your stepmother can claim anything beyond what state statute allows.

Dara J. Goldsmith · Answer

No.  She has rights under State law as the surviving spouse.  In Nevada if the assets were all acquired during marriage she is entitled to 50% even if he left a Will leaving her nothing.

Thomas Edward Gates · Answer

While you can challenge, you will not likely prevail.  She was stilled married, regardless of intent.

Georges Shers · Answer

No, they were still legally married.

Victor Waid · Answer

Suggest you obtain the services of a probate attorney; she does have a community interest to one half of the estate they acquired during marriage.

James Frederick · Answer

Not unless she had moved out more than a year prior to his death. If it was for more than a year, you have an argument under Michigan law. Otherwise, they would have had to have been legally divorced in order for her not to receive her share of the estate. There are ways that your father could have disinherited his wife. By failing to set up his estate plan, it sounds like his intent is only going to be partially honored.

Andrellos Mitchell · Answer

Why not?

Patrick Currin · Answer

The will is entirely determinative.

Christine James · Answer

No.  If there was no legal separation or divorce, she is legally entitled to all of the community property and 33% to 50% of the separate property.  If he had no children, she will get it all.

David Leon · Answer

No. Texas law does not recognize a separation. The spouse would be entitled to 50% of the community estate. There may be an issue as to what is considered community property, and what is separate property, however.

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If my father planned for separation, does this factor into her claim?

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