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.
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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.
Have questions? At RMO, we protect people like you everyday.
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About RMO Lawyers:
RMO LLP serves clients in Los Angeles, Santa Monica, 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
