Does an wife with whom a deceased husband was separated still have full rights over the funeral, burial, etc?

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Does an wife with whom a deceased husband was separated still have full rights over the funeral, burial, etc?

My brother-in-law passed away. He had a girlfriend and a wife of whom he was separated from for quite some time. He had kids with both. His wife of whom had nothing to do with him is now trying to run the show and take everything and have the body cremated with no visitation, etc. Is there anything that can be done to solve any of this? Things such as passing the responsibilities and rights back to his mother?

Asked on November 2, 2010 under Family Law, Illinois

Answers:

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

Answered 10 years ago | Contributor

I am so sorry for your loss.  I am so sorry for your loss.  Technically - and yes only technically - she is his wife and his closest next of kin under the law.  She will also share in his estate by at least one third in many of the states under intestacy laws or in an election against a Will in a probate proceeding.  Here is what I would do: seek help from an attorney in your area to ask the court to issue a temporary injunction against her as they were estranged and giving the right to make decisions to his Mother temporarily.  I do not know if this will work but it might buy you enough time to bury him as you see fit.  You will need heavy supporting evidence of their "separateness" and having gone on with their lives with the intention that they not be a "couple" any more.  And not just his moving on and having more kids and leaving a Will that does not mention her but HER moving on as well.  Try it.  And get good legal help on all the issues that are going to pop up.  Good luck. 


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