What is a child’s rights to their father’s estate?

A man dies. He and his first wife divorced. He married a second time for a little over 25 years when he passed away. When he divorced his first wife she took everything and he had to start all new over with his second wife. He had 2 children by his first marriage; 1 passed away. Does his child by his first wife get anything of his and his second wife’s?

Asked on October 8, 2011 under Estate Planning, Virginia

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

First of all, any accounts held jointly as husband and wife will pass to his second wife automatically by operation of law (e.g. their marital home). Also, any accounts that list her as the beneficiary will also pass to her (e.g. any life insurance proceeds). These assets will not become part of the probate estate.

As to the probate estate, if the father died with a Will, its terms control. If his children are not listed then they inherit nothing; children do not have automatic inheritance rights. If he died without a Will, then he died "intestate"; accordingly the intestacy laws of the state in which he was domiciled when he died will control. Typically, the breakdown is 1/2-1/3 to a surviving spouse, with the remainder to the deceased's children (if 1 child pre-deceases their parent then that child's heirs inherit their share).

A local probate attorney can best advise as to the specifics of the case.


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