QUESTION
My dad took everything when my mom died intestate. He then remarried and left everything to his wife via a will. Can I fight this legally?
Asked on May 17th, 2012 on Wills and Probate - New Jersey
More details to this question:
My mother, who lived in New Jersey, died without a will several years ago. All the family "assets" (for lack of a better word) were jointly owned by her and my father, so he apparently became the sole owner after her death. These assets were basically a house, bank accounts, perhaps a retirement account, etc., that amounted to $300,000. I am the adult biological child of that couple, and they had no other children.
My father remarried. Then, he died and left everything to his wife (i.e., my stepmother) via a will. I''m wondering: Am I entitled to any portion of my biological parents'' assets, or am I basically out of luck? If I wait until my stepmother passes away, would I have a better chance of fighting this thing legally at that point (even if she cuts me out of her will completely)?
1 ANSWER
2 Awards
The New Jersey law on intestate estates is the following:
3B:5-3. Intestate share of decedent's surviving spouse
The intestate share of the surviving spouse is:
a. The entire intestate estate if:
(1) No descendant or parent of the decedent survives the decedent;or
(2) All of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
b. The first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
c. The first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the intestate estate:
(1) If all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent ; or
(2) If one or more of the decedent's surviving descendants is not a descendant of the surviving spouse.
You seem to fall into category c(2) if I am reading the facts correctly because you are the decedent's (your father) surviving descendant (child), but you are not a descendent(child) of the surviving spouse (your father's wife). You should definitely NOT wait until your step mother passes away because chances are there will be no asset by that point. Your success at this is going to depend on how long ago your father died. you should contact an attorney and you will need to be appointed as the administrator of your father's estate.
Answered on May 18th, 2012 at 12:22 PM
Diana L. Anderson, Certified Elder Law Attorney This response is not legal advice and does not establish any form of attorney/client relationship