If my husband has a Will and Trust that doesn’t mention me, what rights do I have?

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If my husband has a Will and Trust that doesn’t mention me, what rights do I have?

Most of our assets are in his name only. These assets have been placed in a trust several years ago. He has property in WI and AZ, along with investments through a major nationally known investment group based in IL. He owned the WI property before our marriage but purchased the AZ home during our marriage. His plan is to leave all of that to his biological grown children. However, he does plan to leave life insurance benefits to me. We have been married for 11 years.

Asked on October 27, 2010 under Estate Planning, Illinois

Answers:

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

Answered 10 years ago | Contributor

In order to protect spouses, IL law prevents a person from entirely disinheriting their spouse, at least without the disinherited spouse's consent. Pursuant to state law, a spouse is entitled to at least $10,000. This amount is intended to support the decedent's family for the first 9 months following the death of the decedent. A spouse receives this amount of money even if there is no Will.   However, the provisions of this statute may be overcome in 2 ways: (1) If a Will specifically states that its provisions are meant to stand in the place of the spousal award, and the spouse does not renounce the Will,then  the terms of the Will would govern distribution; (2) The spouse may renounce the Will and take an "elective share" of the estate. In such a case, distribution of the estate would be governed by the applicable statute.  Note:  Renunciation is not available to a spouse who signed an agreement (i. e. a prenuptial agreement) during the life of the deceased spouse to the effect that the surviving spouse agreed to abide by the terms of the Will.

Additionally, there are other restrictions on Wills. Anything owned in joint tenancy with another person will go to the surviving joint tenant.  Also, other property is not considered part of the estate if it is already promised to someone else. For example, a testator cannot specify in a Will that someone other than the beneficiary of a life insurance policy gets the benefits described in that policy. Similarly, the money from a retirement plan goes to the persons named on the plan, regardless of whether they are beneficiaries in a Will.

As mentioned above, under state law the "elective share" protects surviving spouses from being entirely disinherited by a decedent spouse. A surviving spouse who is dissatisfied with their gift under a Will is allowed to exercise their right of election and take a statutory share of the estate.  If the decedent left children, the spouse's statutory share is 1/3 of the decedent's estate. The 1/3 portion is the minimum amount a surviving spouse may receive. A Will can give more to the surviving spouse, but if it gives less, the surviving spouse can simply elect to waive their share under the Will in favor of this statutorily guaranteed 1/3 share.  Note:  The statutory share is not available to a spouse who has entered a contract during the life of the decedent to accept the provisions of the Will.

Since this is just a brief overview and I don't know the details of your case, you really should consult with a estate planning attorney in your area.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If he is a (mentally) competent adult and the will has not been procured by fraud, by undue influence (e.g. if he was sick and medicated and someone took advantage of it), or by other improper actions, then there is nothing you can do. An adult can leave his assets to anyone he feels like--there is no obligation to leave it too a spouse, no matter how common it is. Especially in a situation like this, where he had assets and children from prior to your marriage and has also left insurance to you, there is almost no way to try to claim that there was anything improper in the will or how it was developed. If you can show that you actually are the owner or part owner of any specific assets, such as by having paid for them, it may be that you can get that asset (or at least a share of it) because it's not his to give; but his own assets, he can determine their disposition.


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