What rights does a legal wife have to her husband’s estate?

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What rights does a legal wife have to her husband’s estate?

My grandfather and his first wife was living separately about 35 years. My grandfather applied for divorce but it was not granted. He “married” another person and has been living as husband wife for the past 30 years. Now he wants to make a Will that the first wife is not to get any thing and the property isto go to his current “wife” who is presently living with him and to his child who is over 35 years of age.

Asked on June 8, 2012 under Estate Planning, West Virginia

Answers:

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

Answered 9 years ago | Contributor

Until he divorces his first wife, she is still legally your grandfather's spouse. So he'll need to divorce her to protect his estate. This is true no matter what the terms of his Will state. The fact is that a spouse cannot disinherit the other spouse completely. A spouse has the right to inherit part of their deceased spouse's estate. This is known as a spousal "elective share". In other words, they can either take what is Willed to them or they can choose (or "elect") to take a certain percentage of the estate outright. Exactly what a spouse is entitled to varies from state-to-state. In your state, my research suggests, that the surviving spouse receives a portion of the estate based on the length of time the couple was married. For a marriage of 15 years or more, the elective spouse is entitled to 50% of the estate.

At this point, your grandfather should consult with a divorce attorney in his area. They can best advise him in this matter.


 


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