What happens when one spouse dies leaving a will that gives nothing to the surviving spouse?  You would be surprised how often this happens, especially in the context of a second marriage.

(If you would like to discuss your rights as a surviving spouse, contact our office to speak to an attorney who can evaluate your situation.)

The typical scenario we see is that husband gets divorced from first wife with whom he had a child and remarries second wife.  After marrying second wife, husband forgets to change his will before he dies.  The will gives all to ex-wife if she survives him, otherwise to child from ex-wife.

The law helps to some degree by treating the ex-wife as if she predeceased husband; however, husband’s child from the prior marriage takes in ex-wife’s place leaving new spouse with no inheritance under husband’s will.  Fortunately, some protection is provided for the surviving spouse in the form of “set-asides” and “allowances.”

First, the surviving spouse is allowed to have the homestead and certain other personal property of the deceased spouse’s estate set-aside for her use and benefit for the remainder of her life.  If the deceased spouse did not own a homestead, then the surviving spouse may be entitled to an allowance in lieu of the homestead of up to $45,000.00.  If the deceased spouse did not own much in the way of personal property then the surviving spouse may be entitled to an allowance in lieu of exempt personal property of up to $30,000.00 (although in our current scenario, the surviving spouse would have to split this amount with the child from the prior marriage).

Second, the surviving spouse can apply for what is called a “family allowance” from the estate of the deceased spouse.  A family allowance is a payment that the surviving spouse receives in an amount necessary for her maintenance (her needs) for one year after the date of the deceased spouse.

Finally, the surviving spouse may have a community property interest in certain estate assets or may have a claim for reimbursement against certain separate property assets of the deceased spouse (e.g., if deceased spouse owned a piece of real estate subject to a mortgage prior to marrying second wife, and payments were made on the mortgage from community property funds).

The attorneys at Romano & Sumner are experienced in protecting the rights of surviving spouses.  To speak to an attorney about protecting your rights, contact our office today.