QUESTION
If my husband dies and the will he made before we met leaves his estate to his daughter am I entitled to anything we acquired?
Asked on Sep 22nd, 2012 on Estate Planning - California
More details to this question:
I just want to know if I am entitled to anything we acquired after we married like my car or our house and personal belongings like my furniture and kitchen wears.
23 ANSWERS
Civil Litigation Attorney serving Aptos, CA
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Richard E. Damon, P.C.
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Yes. Your marriage invalidates the will that was in existence when you met. Thus there is no will. Under California law, the surviving spouse, where there is one child, receives one-half the estate.
Answered on Jun 27th, 2013 at 8:40 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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Yes as his spouse you have rights. The specifics depend on certain facts not included in your post, but you should secure counsel ASAP.
Answered on Jun 27th, 2013 at 8:39 PM
Tax Attorney serving Portland, OR
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Bullivant Houser Bailey PC
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In Oregon, your marriage revokes his will unless it was adopted in contemplation of marriage. You then would be entitled to half of his assets. If his will was adopted in contemplation of marriage, the will would be valid, but you would have the right to take a percentage of the value of your and his combined assets (the elective share). The percentage (up to 33%) depends on the length of your marriage.
Answered on Jun 27th, 2013 at 8:34 PM
Probate Attorney serving St. Louis, MO
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Edward L. Armstrong, P.C.
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Under Missouri law, a widow is entitled to elect to take against the will - this means that in a case such as yours (left out of husband's will because he never updated it after you married) you would be entitled to one-third of the estate (since there was a child).This election must be made rather quickly after the spouse dies (six months).
Answered on Sep 29th, 2012 at 12:05 AM
Estate Planning Attorney serving Las Vegas, NV
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Law Offices of Pamela R. Lawson
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The assets he had before marriage were and are generally his separate property. Assuming you do not have a prenuptial agreement, your community property share of each assets is 50% and he cannot give it away to his daughter, only his $50%. Anything that was your before the marriage is generally still yours. The title to your house is important, if it is in joint tenancy with right of survivorship, it's yours - same with the car. You are entitled to keep any gifts he gave you, even the car if it was a gift. The particulars of your situation may or may not change my general opinion, the language of the Will is import.
Answered on Sep 25th, 2012 at 3:30 PM
You should speak to an experienced estate attorney. There is a widow's portion that comes off the top of his estate, and anything you brought into the marriage (that you owned before) should be your separate property. Also, any gifts you received from him or anyone else is your separate property. Good luck!
Answered on Sep 25th, 2012 at 3:25 PM
Elder Law Attorney serving Hollister, CA
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Charles R. Perry
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Yes, you are entitled to a part of your husband's estate. The legal term is that you are a "pretermitted spouse," which means you were not mentioned in your husband's will. You will need to consult with a probate lawyer to understand your full rights of inheritance. With luck, you will not have much of a fight with your stepdaughter.
Answered on Sep 25th, 2012 at 3:22 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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You are entitled to one half of the after marriage acquired community property, one half of the quasi community property, and one half of the separate property of deceased, the total not being received greater than one half of the separate property of the deceased, assuming no pre marriage agreement was entered into, dividing the property differently between the two of you. If you purchased the house after marriage and is in joint tenancy title, then upon his death you will survive to his interest and be the sole owner.
Answered on Sep 25th, 2012 at 3:22 PM
Tamara Marie Chin
Yes. Your husband's estate is one half of the community estate. So the daughter would receive one half of what you owe together.
Answered on Sep 25th, 2012 at 3:21 PM
In most states, the widow or widower is entitled to a percentage of the estate along with whatever she or he brought into the marriage, personally inherited during the marriage, or, if the parties kept their finances completely separated, whatever he or she purchased for his or her own use with his or her own money. However, if your husband has had time to execute another will since your marriage, some courts may decide that he deliberate excluded you as a beneficiary.
Answered on Sep 25th, 2012 at 3:21 PM
General Practice Attorney serving Glendale, CA
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Law Office of Michael Stafford
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If the will pre-dates your marriage you are entitled to all of the community property you acquired and a portion of your husband's separate property. You should consult with an attorney to determine your rights.
Answered on Sep 24th, 2012 at 1:46 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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The answer to your question depends on a great number of things, the biggest one being how your assets are titled. If everything is titled in joint names, then it would automatically pass to you, upon your husband's death, and the Will would not affect any assets. A will controls only assets titled in the name of the decedent, alone. Assets with joint owners or beneficiary designations pass outside probate and by-pass the terms of a Will. Michigan law also has protections built in so that, even if all of the assets were titled in your husband's name alone, you would still be able to "elect to take against the Will," and would thereby be entitled to a share of the estate. The amount you would be entitled to is generally half of what you would otherwise be entitled to under Michigan's intestate law, (what you would get if there was no Will), reduced by half of what you otherwise receive as a result of the death. This can be a very complicated calculation, but the bottom line is that, you would not be shut out. If the two of you intend a different distribution than that described above, you should meet with an estate planning attorney to get it set up properly.
Answered on Sep 24th, 2012 at 1:45 PM
Alternative Dispute Resolution Attorney serving Baltimore, MD
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Whiteford, Taylor & Preston L.L.P.
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Assets that you own jointly with your husband will pass to you outside his will. If you had a child with your husband, then the prior will is revoked. If the prior will isn't revoked, then you may elect against the will to obtain a portion of the estate.
Answered on Sep 24th, 2012 at 1:36 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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Yes, generally there is a widow's election. You should see an attorney, your rights may be for significantly more than just what was acquired during the marriage.
Answered on Sep 24th, 2012 at 1:35 PM
Thomas Edward Gates
Washington is a community property state, hence, you own one-half of the community property. Also, you are the forgotten spouse, hence, you have further rights to the estate.
Answered on Sep 24th, 2012 at 1:32 PM
Federal Taxation Attorney serving Livonia, MI
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Gold & Associates PC
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It really depends how the assets are held and you may be entitled to some other allowances. But it is just best that he revise his will if he wishes.
Answered on Sep 24th, 2012 at 1:31 PM
Estate Planning Attorney serving South Jordan, UT
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Law Office of Russell M. Blood, P.C.
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The answer depends on how things are titled. If your car and/or your home are titled solely in your name, or if they are titled jointly with your husband, then they should be yours when he dies. The title controls? Not the will. If they are titled solely in your husband’s name, the will would control. However, you should still be entitled to a statutory share of his estate that may be as much as one-third. The statutory formula for calculating the share you’d be entitled to is quite complex, but worth pursuing if everything is in his name. Household goods may be a bit more complicated unless there is paperwork identifying the intended owner. If your husband is still living and is mentally competent, the simplest thing to do would be to have him sign new estate planning documents that reflect his current intent and/or re-titling the assets as intended.
Answered on Sep 24th, 2012 at 1:29 PM
The short answer is "yes". You have the right to receive some property. The specific kind and amount will depend on everything else going on. You need to call an attorney right away to protect your rights.
Answered on Sep 24th, 2012 at 1:24 PM
Neal Michael Rimer
He should re-do his Will. Your husband can give away his separate property and his 1/2 of the community property acquired during marriage. You are entitled to your 1/2 of the community property acquired during marriage. The Will only acts on property that is in a decedent's name. If there are joint tenancy properties, then the surviving joint tenant will be the sole owner of that property. With the house, you need to look at how title is held. The same is true on bank accounts. They could all be in joint tenancy. It is best to work with an attorney who is willing to go through all this detail and sort things out. Then a new will would seem appropriate and perhaps other documents like a trust and a durable power of attorney for health care.
Answered on Sep 24th, 2012 at 1:23 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Yes. If you are not mentioned in his will, and it pre-dates your marriage, you would get all of the community property AND a third of his separate property. So, if something was bought with money earned during your marriage, it's community property, and you get it. If it was purchased with money he owned prior to your marriage, then it probably is his separate property, and you get a third. This assumes you have no written agreement, and no title documents are relevant. With your car, how title is held probably is important. That is even more true with your home: What does the deed say? For example, if you and he hold it "as husband and wife as community property with right of survivorship", then it comes to you. Similarly, joint bank accounts would be yours too.
Answered on Sep 24th, 2012 at 1:22 PM
There is a potential for a disastrous and costly legal dispute between you and your step-daughter depending on the value of your husband's estate, the beneficiary designation of any retirement and life insurance he may have and the title ownership of the house because while you can elect against the will for part of his estate, proving what was jointly acquired and what you separately own is fraught with possible argument. He and you should get new wills.
Answered on Sep 24th, 2012 at 1:18 PM
Oklahoma has a "spousal share," meaning a spouse cannot be disinherited from their marital property. Depending on if it is a second marriage, or if you have been married for a very long time, the spousal share if different. You should contact an attorney to discuss what your spousal share is, based on your situation, and fight for your rights to benefit from your husband's estate.
Answered on Sep 24th, 2012 at 1:14 PM
Yes, you would be entitled to all of the community property accumulated during your marriage. Everyone should update their estate plan when they marry, particularly when they have children from a prior relationship.
Answered on Sep 24th, 2012 at 1:13 PM