Can a living spouse claim an estate if everything was left to the grandchildren? 6 Answers as of July 11, 2013

If someone has a will and estate that is left to grandchildren, can a living spouse claim the estate? What if the spouse does not show a will and the grandchildren find out after the fact? Is there legal recourse? If the living spouse can get the entire estate then why make a will?

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Majors Law Firm, P.C.
Majors Law Firm, P.C. | M. Jason Majors
The living spouse may be entitled to what is called an Elective Share, which is usually 1/4 to 1/2 of the deceased spouse's estate (depending upon state law). If the spouse, or anyone else, has a cop of the Will, they are usually legally obligated to turn it over to the named Executor or the Court.
Answer Applies to: Wyoming
Replied: 6/29/2011
The Coyle Law Office
The Coyle Law Office | T. Andrew Coyle
This depends on your state's laws, but some states do allow a surviving spouse the right to a portion of the estate (not all of it, though). So, the grandchildren would ultimately be entitled to at least most of the estate. If the surviving spouse hid the will, there would be legal recourse there.
Answer Applies to: Illinois
Replied: 6/29/2011
Burnham & Associates
Burnham & Associates | Stephanie K. Burnham
The answer depends on the laws of the State and how large the decedent's estate is. It is entirely possible that the widow could elect to take a statutory share, rather than follow the will, and the value of the estate is less than what the widow is entitled to by law.
Answer Applies to: New Hampshire
Replied: 6/29/2011
Ashman Law Office
Ashman Law Office | Glen Edward Ashman
Since you left out what state this is in, your post cannot be answered well. Which state this is matters greatly. In most states one cannot completely disinherit a spouse, and in many states a spouse can claim some (or all) of an estate before a will is probated. If you have a concern with this, you would want to retain counsel to determine your rights in your state.
Answer Applies to: Georgia
Replied: 6/29/2011
Apple Law Firm PLLC
Apple Law Firm PLLC | David Goldman
A spouse has a legal right to claim all jointly held assets and an elective share if they do so timely. You should review your situation with a Florida Estate Planning Lawyer to see what rights you have.
Answer Applies to: Florida
Replied: 6/29/2011
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