What happens if a wife is only left 25% of their late husband’s estate?

My father passed away more than a year ago. He left behind pensions, 401k and an IRA to be equally distributed between his 3 children and his wife (my mom). She is very unhappy about this because as a wife of 50 years, she feels that she should have received more than a quarter of his assets, so she is planning on taking this to court. What can the law do for her in this case?

Asked on June 20, 2014 under Estate Planning, West Virginia


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

Answered 6 years ago | Contributor


I am so sorry for your loss.  In West Virginia a spouse has what is known as an "elective share" against the estate of their spouse, meaning that they can not be left less than a certain amount of the estate or they can "elect against" the estate to get the amount the law would give them.  West Virginia has adopted the definition of an "augmented estate" as used in the Uniform Probate Code (UPC). In these states the disinherited spouse can elect to take a portion of the deceased spouse's probate estate, non probate assets (which are things like an IRA with a designated beneficiary) and property titled in either spouse's name.  Now West Virginia Code section 42-3-1 covers a spousal elective share.  Since your parents were married more that 15 years your Mom would get 50% of the augmented estate.  Please have her seek legal help. Good luck.


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