Upon losing her husband, the determination of what the surviving wife will inherit will be based on a combination of state law, the husband’s last will and testament, his revocable living trust, any irrevocable trusts, retirement account beneficiary designations, payable-on-death or transfer-on-death account designations, pre-nuptial agreements, post-nuptial agreements, and potentially other estate planning documents. However, barring exceptions (such as pre and post-nuptial agreements), every state in America prevents a spouse from entirely disinheriting their surviving spouse, no matter how long the couple has been estranged or how much the decedent wished to keep his wife from an inheritance.
In California, a community property state, the surviving spouse is entitled to at least one-half of any property or wealth accumulated during the marriage (i.e. community property), absent a pre-nuptial or post-nuptial agreement that states otherwise. This is because each spouse owns one-half of all community property earned during marriage, and this is true regardless of which spouses earned or acquired the community property.
If you’re a surviving spouse who is being told you are not going to receive your fair share of your deceased husband’s estate either through a will, trust, intestacy or other document, then you need to consult a probate litigation attorney who can help you determine and enforce your rights, which may include contesting a will, trust, or other distribution in court.
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Does the Wife Get Everything When the Husband Dies?
A wife certainly can receive everything when a husband dies. A classic example is where the husband dies without a trust or last will and has no other surviving next of kin. Also, a husband can choose to ensure his wife receives his entire estate when he passes through proper estate planning.
Imagine a husband wants to prevent a child from a previous marriage from claiming any inheritance. He can sign a will or execute a trust leaving all his assets to his wife. Typically, it is good practice to leave a sufficient amount to the child that deters them from challenging the will or trust. This work should be done in consultation with your estate planning attorney.
If someone passes away without a will or trust, their estate most likely will be distributed according to intestate laws, which are different in every state. In the case of the man who has one child from an earlier marriage in California, his surviving spouse will receive all their community property and half of the husband’s separate property. Assuming the child is the husband’s only offspring, that child will receive the other half of the husband’s separate property, that is, the property he had before his marriage or inherited.
These are complex factual and legal issues, and should be handled only with the assistance of an experienced probate litigation attorney.
What Is the First Thing To Do When a Spouse Dies?
Beyond taking care of funeral arrangements and contacting loved ones, the first thing you should do when your spouse dies is to locate any estate planning documents. These might include their most recent last will and testament, any trust documents, records of payable-upon-death accounts, insurance policies, etc. If there are no documents, then that is something for you to discuss with your lawyer.
Next, you should contact your estate planning lawyer, and if you don’t have one you should locate one to help you administer your deceased spouse’s estate. If you think there are going to be problems from children, heirs, business partners or other third-parties, then instead you should contact an estate litigation lawyer who can address your concerns and make sure you are protected. The sooner you retain a lawyer, the better so can understand your rights and obligations and learn the next steps you need to take to ensure the estate is administered properly so you can receive your rightful inheritance.
What Is Probate?
Probate simply is the court process through which a deceased person’s estate assets are distributed after they pass. Probate court judges monitor the administration of intestate estates and wills (and sometimes trusts) to ensure all of the assets are marshaled, creditors paid, and assets distributed to the rightful heirs and beneficiaries.
Probate starts with a petition for probate, either of will (a testate estate) or even if there is no will (an intestate estate). If there is a will, the probate court will look to determine if the will is valid and entertain any challenges or objections raised. If none, the court will look to appoint an executor or executrix (if there is a valid will) or an administrator (if there is no valid will). Normally, the executor or executrix will be named in the decedent’s will. Whomever the court appoints will be responsible for handling the estate from start to finish.
If the surviving wife believes that some or all of the property that might be subject to probate belongs to her and not the probate estate, then as surviving spouse she can file a spousal property petition seeking to recover for herself her interests in those properties, including community property interests. Whether to pursue probate or a spousal property petition is an involved decision and one that should be done in consultation with your estate administration attorney or estate litigation lawyer.
Regardless of the process, if you believe what you are set to inherit is less than you should receive as a surviving spouse, including if late changes were made to your spouse’s will, trust, or other asset documents, it’s probably time to speak to an attorney. A probate litigation lawyer can guide you through the entire inheritance and probate process and help pursue what is rightfully yours.
Have questions? We’re happy to discuss.
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The Trustee’s Guide to Trust Distributions
The Trustee’s Guide to Avoiding Trustee Removal
The Guide to Breach of Fiduciary Duty and Abuse
About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.