What rights do my son and I have regarding his ate father’s litigation settlement if he remarried without divorcing me?

UPDATED: Oct 2, 2022

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What rights do my son and I have regarding his ate father’s litigation settlement if he remarried without divorcing me?

I married 29 years ago and had a son a year later. The man I married passed away this year. While we never divorced, he remarried. My son received a limited power of attorney for asbestos litigation from this second

Asked on October 7, 2019 under Estate Planning, Delaware


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

First, if he never divorced you, then the second "marriage" is not valid: you were legally still his wife, since you cannot marry person B while still married to person A. That means that you are entitled to a share of his estate, including his settlement, since under DE law (and the law of every state with which I am familiar) you cannot completely disinherit a spouse and they must get someting (typically, around 1/3rd of the estate, give or take).
Second, while you can disinherit a child if there is a will leaving nothing to the child, in the absence of a will (if there is no will), the child will get a share, too.
If the settlement and/or the other assets you believe your husband had (e.g. real estate; vehicles; money or investments) were more than a few thousand dollars (i.e. at least a few tens of thousands), contact a lawyer to help you: it appears you and possibly your son are entitled to a share of the estate, but getting it will be complex, since it will, among other things, show that the second "marriage" was invalid. You will need a lawyer's help.

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