If my wife died anf left me out of her and Will, should I contest it?

Asked on August 20, 2015 under Estate Planning, Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

A spouse has the right to name whomever--or not name whomever--she wants as a beneficiary of her will. However, some states, like your own Virginia protect a spouse from being totally disinherited. Your state allows the disinherited spouse to take an elective share--a portion of the deceased spouse's estate. The procedure for doing so can be somewhat complex, as can the calculations of how much you are entitled to it depends on what the assets were, their ownership, whether there were children, etc. You are advised to  consult with a probate or trusts & estates attrney to help you, unless the size of your wife's estate is so small as to not justify the cost of an attorney in that case, you should contact the probate court and inquire into the process for doing this yourself.
As for challenging the will entirely rather than just taking the share your state gives you it is likely not worth it, unless your wife was not mentally competent when she made the will and you have medical evidence to prove it it is very difficult to overturn a will for any other reason, and that she did not leave her spouse anything is not, by itself, a reason to invalidate the will.

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