Does legal son of estranged wife have rights to his recently deceased father’s estate?

My nephew’s father recently passed away. My nephew is the son from the
first marriage. The son from the second wife doesn’t want my nephew to
share in the estate. The father was 71. The sons are both adults and
married. Does my nephew have any rights to his father’s estate in New

Asked on September 4, 2016 under Estate Planning, New York


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

Answered 4 years ago | Contributor

If there was no Will, then as a child of the deceased your nephew would be an "heir" and therefore entitled to a portion of the estate through "intestate succession". However, since there was a Will it controls just how the estate is distributed. And you should be aware that a child can be disinherited by a parent. Additionally, some assets pass outside of probate to the beneficiaries listed on them (e.g. 401k 's, insurance proceeds, etc.). If, as the estate attorney pointed out, your nephew's father did include him in the Will he legally must be notified of this by the executor. Further, as an "interested party"" (i.e. someone who would stand to inherit if there was no Will, such as a child), he has the right to request a copy of the Will within a reasonable timeframe after the date of death. In the meantime, once the Will is filed with the probate court it becomes a matter of public record, so anyone can obtain a copy.

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