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

UPDATED: Oct 8, 2011

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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


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

Answered 11 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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