Can a surviving spouse’s rights override the terms of a Will?

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Can a surviving spouse’s rights override the terms of a Will?

My father and step-mother have wills. I was told by my father that I was the executor of his Will and he had made provisions for me and my children, along with my step-mother and her children and grandchildren. My father passed in 07/10 and I am his only child. I was told by my step-mother that because she is his surviving spouse, everything goes to her regardless of what my father’s Will says. Is this true? And if it is true, can my step-mother change her Will l to leave everything to her children, instead of what my father’s Will stated?

Asked on September 17, 2010 under Estate Planning, Oregon

Answers:

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

Answered 11 years ago | Contributor

I am so sorry for your loss.  I am hoping that you have the original Will for probate. There are certain issues here that must be dealt with.  Husbands and wives generally hold assets - houses, bank accounts, etc., - as joint tenants with what is known as "rights of survivorship."  These assets "pass" to the other spouse upon the death of one of the spouses by "operation of law" and no probate is needed.  In other words, the asset becomes theirs automatically.  However, assets that are not held in this way can be left to whomever the testator (your Father here) designates in the Will.  The only way that a spouse can obtain ownership and override  the Will is if the law in the state in which they live allows a "right of election" against the Will.  This is a right of a surviving spouse to contest how the assets are distributed but only if they were not provided for either under the law or by operation of law if they do not receive their "elective share"  In Oregon as I read the statute this is one-fourth of the value of the net estate of your Father BUT that number is reduced under certain conditions.  Do not be bullied here.  Go and seek help from an attorney in your area.  Good luck.


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