Is an estranged wife always the heir?

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Is an estranged wife always the heir?

The couple married 4 years ago. However, the wife left marriage and home about 15 months later. The husband died 4 months ago. Is there an argument that she should not inherit? The only asset is property

inherited from his father who dies last year. There is no Will.

Asked on April 27, 2018 under Estate Planning, Virginia

Answers:

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

Answered 2 years ago | Contributor

State laws differ at what happens to an estate if a spouse dies while separated. Firsts of all, if there was a formal separation agreement in effect, it may specify what happens to the estate if one of the parties to it dies. Even if it doesn't, the fact that the spouse's were legally separated may affect the surviving spouse's inheritance rights. If there was such an agreemnt, ost states give a spouse the right to inherit as a surviving spouse, while other states don't consider a surviving spouse as a spouse if there was a legal separation agreement in effect (my research suggests that VA follows the former view). Further, if there was no legal separation agreement in effect, then in virtually all states, the surviving spouse is entitled to inherit under "intestacy" law (the law in effect when there is no Will). At this point, you should condult directly with a local probate/divorce attorney to confirm specific state law.


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