Should the living spouse get everything after the death of their spouse?
Question Details:
My father who past away recently had eight children from two marriages. He left no will. Would his last spouse receive everything? Property, life insurance, social security, 401K? He had three young children with his last wife, three with his first wife who are all over twenty one, and one out of wedlock. How does this work?
I am sorry to hear about the loss of your father.
You should speak with a Massachusetts probate attorney. Most of the previous answer is substantively correct, but in Massachusetts children and spouse will split a deceased's estate 50/50. Note that the property passes to his 'current' spouse, not his 'last' spouse. Each type of property will pass differently, depending upon the nature of the property, ownership status, etc.
For example, the proceeds of your father's life insurance policy and 401(k) will go directly to the named beneficiary, and not under the laws of intestacy. Generally, property that is owned jointly with another will pass to the other joint owner automatically. And again, generally, property owned individually, solely, or as tenant-in-common by your father at the time of his death would be subject to the laws of intestacy.
Please feel free to contact my office if I can be of any assistance. 617-357-4898.
I generally agree. Unless there is an enforceable WILL, the state law controls.
Your father died "intestate", that is without a Will. Accordingly, his probate estate would be distributed under the laws of the state that he legally resided in at the time of his death. Typically, it is 1/3 to the surviving spouse and 2/3 to all children, but this varies from state-to-state.
As to the life insurance and 401K , if there are designated beneficiaries listed, the proceeds will go to them directly and do not pass through probate. If no beneficiaries are listed, or they have predeceased your father, then those proceeds are paid into the estate and disributed as explained above.
As for property, if it is held as "joint tenants with rights of survivorship" (JTWROS), then it will pass by operation of law to the other owner(s). If it is held as "tenants-in-common", or individually in his name, then the deceased's share will become part of their estate.
Note: If the deed is silent as to just how joint title is held there is a presumption that it is as tenants-in-common, unless the spouse is listed as a joint owner. In that event, it be be treated as a joint tenancy.
