If my spouse should pass, will I inherit everything that we own?

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If my spouse should pass, will I inherit everything that we own?

We own a home in FL, in both our names. Everything except our cars are in both of our names. We live in an apartment in NY. My husband refuses to go with me to make a Will. We have 4 children – 2 are his from a previous marriage, and 2 are mine from a previous marriage. He seems to think that I will automatically inherit everything, but I want to protect my children if I should pass first. I also will be inheriting some money from my mother’s family which I would like to see my children inherit and keep it in our family.

Asked on June 29, 2011 under Estate Planning, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Your husband appears to be incorrect. If there is no will, the estate passes by what is known as intestate succession. Florida, like many states, makes provision for children as well as spouses--in Florida, since he has children from a previous marriage, they will get a significant share (one-half, I believe). Similarly, New York gives some of the estate (if it's over a certain amount or threshold; I believe around $60k) to the children, which would mean some to his children of a previous marriage. In order to make sure the money all goes to you, he needs to execute a will. Also note: since you own property in one state but live in another, it's not 100% clear which state's intestacy laws would apply, since that is a function of the state which would be considered your residence. To not be subject to the vagaries of which laws would be found to apply, again, your husband needs  a will setting out the exact distribution.


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