What is my Sister's Entitlement if she is not named in her husbands will? 7 Answers as of July 12, 2013

My sister was married in early April. Her husband (J) died in a motorcycle accident 3 weeks later. He never changed his will to include her. It appears everything goes to his 3 grown children. Also, he never probated his 1st wife's will. J has nearly a $1 million annuity, two homes and three timeshare. My sister was told that all she is entitled to is 1/2 of his pension and his Social Security when she turns 67 (in 8 years). A friend told her that since she is not mentioned in J's will she is still entitled to a large share of everything and that the courts will not allow her to receive next to nothing. What action should she take?

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Theodore W. Robinson, P.C.
Theodore W. Robinson, P.C. | Theodore W. Robinson
Your sister has a "Right of Election" which means she can "elect" against the Will to the extent of 1/3 plus $50,000. or 1/2 if there is only one child plus $50,000. However, if there is an insurance policy, the named beneficiaries receive the proceeds of that, since it passes outside of the Estate. The best advice is for her to immediately consult with a qualified Estate lawyer local to her and follow through with asserting her claims against the Estate. That will usually result in some negotiations between her and the prior children and a settlement will most likely result. Of course, there can be other difficulties with the title on all the properties which would also pass outside the Estate if they were in joint names. If the other estate was not probated, then it may have to go through his estate. Good luck.
Answer Applies to: New York
Replied: 6/3/2011
Burnham & Associates
Burnham & Associates | Stephanie K. Burnham
As a Surviving Spouse, she will be entitled to "elect against the Will", and receive an intestate share of her husband's estate. What and how much of a share will be based on the State Law of the State is which they were residents. She should seek the advice of an Estate Planning and/or Elder Law attorney.
Answer Applies to: New Hampshire
Replied: 6/3/2011
The Schreiber Law Firm
The Schreiber Law Firm | Jeffrey D. Schreiber
Each state's law is different, so it depends on what he lived in.
Answer Applies to: California
Replied: 7/12/2013
Apple Law Firm PLLC
Apple Law Firm PLLC | David Goldman
This is a complicated issue, generally a spouse is entitled to the jointly held assets and a life estate in the home. Certain other government benefits depending on the length of the marriage and have have some rights created by contact. In addition, if elected timely, the spouse may claim an elective share instead of the probate assets. In Florida, this is 30% of the elective estate, which again is different than the assets subject to probate. Your Sister should contact a Florida Estate Planning Lawyer to review the assets, options, and help guide her to make the decision that makes the most sense for her.
Answer Applies to: Florida
Replied: 6/3/2011
Komanapalli Massey LLP
Komanapalli Massey LLP | Mark A. Massey, Esq.
She certainly ought to ignore all the bad advice she has received from non-lawyers or lawyers who represent someone who wants your sister to take nothing. The first thing she needs to do is to contact an estate planning attorney who knows what he or she is talking about.When a person dies intestate, that is, without a will, his or her spouse is generally entitled to all that he has left behind, and certainly no less than half. The other half would be distributed to any other heirs, such as his kids,in accordance with the laws pertaining to intestacy. That will your sister's husband had going into the marriage is arguably ineffective at least insofar as it attempts to distribute her half of his estate. Moreover, though, your sister should argue,through that estate planning attorney whom I am certain she is wisely about to hire,that she, as his spouse, is entitled to all of her husband's estate. If not all of it, then, since his will did not specifically exclude her, she is entitled to an intestate half of her deceased husband's estate.Her husband's will is valid, if at all,only for purposes of distributing the half share of his estate which he was entitled to devise by his will as he wished, in this case to his children in accordance with his will's terms. Your sister, his wife,is entitled to her half regardless of the existence of the will. But, as I said, since the will came before the marriage and it did not specifically exclude her as a beneficiary, the presumption should be that he intended but failed to change his will,that the will is invalid in its entirety.If a probate court did declare that the will is invalid, then your sister's husband would have died intestate, meaning without a will, and she would be entitled, as his wife, to the entirety of his estate, including all that his former wife left to him.
Answer Applies to: California
Replied: 6/2/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Every day she talks to friends and does not hire a lawyer hurts her case. She needs a lawyer immediately. She may have a right to years support and other means of getting some of the estate.
    Answer Applies to: Georgia
    Replied: 6/2/2011
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