What happens to my mother’s estate if she passes away and is married?

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What happens to my mother’s estate if she passes away and is married?

She and her husband haven’t been together over 20 years and my Grandmother is living. Who would get her estate?

Asked on June 30, 2011 under Estate Planning, North Carolina

Answers:

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

Answered 11 years ago | Contributor

I assume that there is no Will (if there is its terms will control). In such a case your mother will be said to have died "intestate". This means that the intestacy laws of the state in which she is domiciled will control. Typically, that means that the surviving spouse will get 1/3 - 1/2 of the estate and the children will get the remaining 2/3 - 1/2. The fact that your mother and her husband were separated will have no bearing as long as they are still legally married as of the time of your mother's passing.

Note: If her husband predeceases her, the children will inherit the entire estate.


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