QUESTION
My lawyer has told me that my mothers husband can file a suit for a larger portion of the house and charge the cost back on the estate, true or not?
Asked on Jan 29th, 2012 on Trusts and Estates - Kentucky
More details to this question:
I am dealing with my mothers estate which she didn''t have in order before she died. She lived in Kentucky and was married at the time of her death. She left a will that simply stated that she left her home to myself and my brother with a life interest to her husband so that he would always have a place to live until he died. The will has been probated, all the money went to the husband, there is no estate other than personal property and the house. Neither of these things is worth much. The husband has late stage dementia so can no longer live in the house because he would be alone. My brother lives in the house as he has for many years.
1 ANSWER
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If you don't leave your spouse what your state law says he or she is entitled to inherit, the spouse can - by law - go to court and ask for it. But just because someone has a statutory right to do it, doesn't mean he would do it, is capable of it, or even wants to. A man with late stage dementia would have to have someone with the authority to do it on his behalf through power of attorney or guardianship, and the process is often called "electing against the Will."
Generally, there will be a time limit within which the spouse must make further claims. Be sure to ask your lawyer if and when that time would be passed. If you are concerned about this, perhaps you should contact another Kentucky attorney with a strong practice in probate law for a further consultation.
To your success,Gale Allison, Principal AttorneyThe Allison Firm, PLLChttp://www.theallisonfirm.com
Answered on Feb 21st, 2012 at 5:01 PM