Do I have a claim to my father’s estate?

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Do I have a claim to my father’s estate?

My father died suddenly 2 weeks ago at age 52. He had remarried and lived with his new wife. Under NY law does she get everything or do I have legal rights to a portion of his estate?

Asked on July 22, 2011 New York

Answers:

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

Answered 10 years ago | Contributor

First of all, did your father have a Will? If he did and you were not listed as a beneficiary then you may have been disinherited. And this is perfectly legal; a child has no automatic inheritance rights in such a situation. However, most states require special wording in a Will to prevent accidental disinheritance; for instance,if the deceased was not aware that they even had a child. Bottom line, so unless your fatherdid not know of your birth, if you were not listed as beneficiary in his Will you are not entitled to inherit.

On the other hand, if your father did not have a Will when he died then he died "intestate". Accordingly the laws of the state in which he was domiciled when he passed control. In most states, that means that the estate is split between a surviving spouse, if any, and all children. In NY, a spouse receives the first $50,000 and 1/2 of the remainder of the estate, with the other 1/2 to the children. 

Note: Not all of your father's assets would necessarily be included in his probate estate. For example: life insurance proceeds, 401k funds, joint bank accounts and, in some cases, co-owned real estate. 


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