What are inheritance rights if my mom has been married to my stepdad for over 20 years but they have been separated for at least 10 of the 20 years?

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What are inheritance rights if my mom has been married to my stepdad for over 20 years but they have been separated for at least 10 of the 20 years?

They are in relationships with other people and have moved on but just do not talk about divorce. My mom is getting older and if something should happen to her, I know all of her assets, pension, and insurance policies will go to him legally. What can me and my mom do to make sure that doesn’t happen? Can she draft a will that basically says she leaves all of her assets, pension, etc. to me or are other legal actions required?

Asked on November 1, 2012 under Estate Planning, Maryland

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Maryland has some probate provisions which allow a surviving spouse renounce a will and essentially have it invalidated if they feel that the will does not leave them a proper share of the estate.  The purpose of this law was to prevent one spouse from stripping the other spouse from the marital estate by the drafting of a will.  So... even though your inclination right now is to have her draft a will, it may not have much effect in the long run.  If she transfers major assets to you, he could also call "foul" on the transfers and try to reclaim gifts or transfers to you through the probate process.  Basically, all she can do is give away her share of the marital estate-- but even then, it could be suject to challenge.

What your mom really needs to do right now is file for divorce and have the property officially divided.  After the divorce is finalized, she can then execute a will that provides for the disposition of any assets that were awarded to her. 


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