If my dad passed away and left my mother nothing in his Will, is she still entitled to anything?

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If my dad passed away and left my mother nothing in his Will, is she still entitled to anything?

They were still married but he left my brother power of attorney.

Asked on June 11, 2015 under Estate Planning, South Carolina

Answers:

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

Answered 5 years ago | Contributor

Yes, she is entitled to something. The fact is that one spouse cannot disinherit the other completely.  This is due to something known as the "spousal elective share" statute. This is a law that gives a surviving spouse the right to claim 1/3 of the estate even it they are completely disinherited in their spouse's Will. The rationale behind the law is to protect the surviving spouse from being left destitute. That having been said, while the right to an elective share is a statutory right, it must be properly and timely claimed or the right to collect will be forfeited.

At this point, you mother should consult directly with a local probate attorney.


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