ESTATE PLANNING PROBATE NEWSLETTER
Are you entitled to a share of your deceased spouse's property if he/she does not include you in a will? In most cases, you would be able to receive a share. However, some laws may prohibit you from getting any of your deceased Wills: Omission of a Spouse
Are you entitled to a share of your deceased spouse's property if he/she does not include you in a will? In most cases, you would be able to receive a share. However, some laws may prohibit you from getting any of your deceased spouse's property.
It is common for a person to execute a will, later meet and marry someone, and then fail to change the will naming the spouse as a beneficiary.
Some states then provide for a share of the decedent's property to go to the omitted spouse. Of course, the marriage must be valid for the omitted spouse statutes to apply.
- Half of the community property, if you reside in a community property state
- Half of any quasi-community property - property that was acquired in a community property state (only certain states recognize quasi-community property)
- Up to 50% of your spouse's separate property if he/she died intestate (without a will)
Your share of your deceased spouse's property would come from whatever property is not specifically distributed in the will, commonly referred to as "residue." The law in effect when you married is the law that applies to your situation, even if the law changes during your marriage.
You may not receive a portion of your spouse's property as an "omitted spouse" if your spouse has done any of the following:
- Purposely not included you in the will
- Provided for you by other means
- Written a codicil that contains no provision for you
- Executed with you a legal contract that waives his/her duty to share the property with you
Included a disinheritance provision in the will with the contemplation of marriage