What happens with my ex’s estate if he was not legally remarried?

UPDATED: Oct 1, 2022

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What happens with my ex’s estate if he was not legally remarried?

My ex-husband remarried 5 years ago and passed away 3 years later. Our children were left with 3/4 of his estate where his widow now lives and also money which she had partial control over. My adult daughters feel like she has been dishonest with the amount of money owed to them and the current situation with the houses that he owned with her. My oldest daughter just found out his widow was still legally married when she married her dad. Would this change anything with the estate that was left to all 4 of them because, according to her, he had no Will which I find hard to believe because he had been so ill. We don’t know where to start.

Asked on December 18, 2017 under Estate Planning, Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If there was no will, the estate passes by intestate succession, or the rules for who gets what when there is no will. (Note: if a will was created but has "disappeared" and is never found, it may as well not exist and has no effect.)
A legally married spouse inherits a large share of the estate under intestate succession, if there was no will, while the deceased's children by another person inherit the rest; but if someone was NOT legally married to the decedent (person who passed away), they inherit *nothing* even if the lived together, told people they were married, etc. Only legal marriage affects inheritance.
So if the widow was still married to another when she "married" your ex, he and she were NOT married unless they "re-married" later, once her prior marriage was actually legally terminated: in the U.S. you simply cannot marry person B while still married to person A. So the status of her prior marriage at the time when she supposedly married your ex would affect what your children would inherit if there was no will.
(Note: certainly jointly owned property, like real estate owned as joint tenants with right of survivorship [the most common way for spouses or people who act as spouses to own a home] or joint bank/brokerage accounts is not inherited: it goes directly to the surviving joint owner when one owner passes away. So if they owned assets jointly, she may get them regardless of marital status.)
Contesting inheritance can be complicated: you really need a lawyer to do it properly. If there is enough at stake (enough money or enough equity in real estate, for example) to make hiring a lawyer worthwhile, your children should retain one to look into this situation and challenge the alleged spouse's right to inherit, if appropriate. If there is not enough to justify the cost of lawyer, they wish to leave well enough alone.

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