If my father planned for separation, does this factor into her claim? 21 Answers as of May 09, 2014

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?

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Ronald K. Nims LLC | Ronald K. Nims
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.
Answer Applies to: Ohio
Replied: 5/9/2014
Estrada Law P.C. | Michele Ungvarsky
Unless some legal paperwork was filed, it is very difficult to show intent. Check with an Estate Planning Attorney in your area.
Answer Applies to: New Mexico
Replied: 5/2/2014
Law Ofices of Edwin K. Niles | Edwin K. Niles
She may be entitled to her half of community property only. Better see a probate lawyer ASAP.
Answer Applies to: California
Replied: 5/1/2014
Minor, Bandonis and Haggerty, P.C.
Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
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.
Answer Applies to: Oregon
Replied: 5/1/2014
James T. Weiner & Associates, P.C.
James T. Weiner & Associates, P.C. | James T. Weiner
If your father had a will the will may control except to the wife's marital interest in the estate CONTACT A PROBATE ATTORNEY.
Answer Applies to: Michigan
Replied: 5/1/2014
    The Stutes Law Group, LLC
    The Stutes Law Group, LLC | Ronald E. Stutes
    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.
    Answer Applies to: Louisiana
    Replied: 5/1/2014
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    What he planned to do doesn't matter.
    Answer Applies to: Idaho
    Replied: 5/1/2014
    Durham Jones & Pinegar | Erven Nelson
    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.
    Answer Applies to: Nevada
    Replied: 5/1/2014
    Ashcraft & Ashcraft, Ltd.
    Ashcraft & Ashcraft, Ltd. | Randall C. Romei
    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.
    Answer Applies to: Illinois
    Replied: 5/1/2014
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    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.
    Answer Applies to: Nevada
    Replied: 5/1/2014
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    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.
    Answer Applies to: Nebraska
    Replied: 5/1/2014
    Gates' Law, PLLC | Thomas E. Gates
    While you can challenge, you will not likely prevail. She was stilled married, regardless of intent.
    Answer Applies to: Washington
    Replied: 4/30/2014
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    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.
    Answer Applies to: California
    Replied: 4/30/2014
    Law Offices of George H. Shers | George H. Shers
    No, they were still legally married.
    Answer Applies to: California
    Replied: 4/30/2014
    Frederick & Frederick PLC | James P Frederick
    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.
    Answer Applies to: Michigan
    Replied: 4/30/2014
    Law Office of Andrellos Mitchell
    Law Office of Andrellos Mitchell | Andrellos Mitchell
    Why not?
    Answer Applies to: District of Columbia
    Replied: 4/30/2014
    Patrick W. Currin, Attorney at Law | Patrick Currin
    The will is entirely determinative.
    Answer Applies to: California
    Replied: 4/30/2014
    Law Office of Pamela Braynon | Pamela Y. Braynon
    She can challenge it however the will trumps it, unless she can prove him incompetent at the time he wrote the will.
    Answer Applies to: Florida
    Replied: 4/30/2014
    James Law Group
    James Law Group | Christine James
    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.
    Answer Applies to: California
    Replied: 4/30/2014
    Law Office of Andrew Oostdyk
    Law Office of Andrew Oostdyk | Andrew Oostdyk
    Yes, if his will is dated prior to his marriage to your step-mother, it will be assumed he meant to change his will to include his wife. You would need to provide evidence to counter her claim.
    Answer Applies to: Texas
    Replied: 4/30/2014
    The Law Office of David L. Leon
    The Law Office of David L. Leon | David L. Leon
    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.
    Answer Applies to: Texas
    Replied: 4/30/2014
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