If my father just passed but has not been living with wife for 2 years and so he left all assets to his children in his Will, is she entitled to anything?

Asked on July 5, 2012 under Estate Planning, Virginia


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

I am so sorry for your loss. A surviving spouse of a decedent domiciled in Virginia who died without a will is entitled to a portion of the estate.  The surviving spouse can also make a claim against the estate, even if the decedent made a statement in the will disinheriting the surviving spouse.  In fact, only with the consent of the surviving spouse (usually done through a pre-nuptial contract) can a spouse be excluded from inheriting part of the estate.  This is generally known as the spousal right of election. There are certain time frames with in which this must be done.  Good luck.

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