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Ask an Attorney: Wills

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My son was in the process of getting a divorce when he died in a car crash. He didn't have any children. He had done a will during the divorce, leaving his property to his sister. However, both he and his sister were killed in that crash. I'm wondering who would receive my son's property?

• I spoke to this gentleman personally, but he didn't have a lot of additional facts about the divorce itself, except that he was sure his son was still married at the time of the crash

• So we check terms of son's will

• Still married at date of death, from what his dad said

• Initial question may be whether son specifically disinherited his estranged wife

• Example: if his will said, "I am intentionally omitting my wife from the terms of this will; we are divorcing, and it is my intention that she receive nothing from my estate."


• If he stated two things in the Will about his wife, his father might have a chance to inherit


• If he stated (1) that he was married to her, but that a divorce was pending; and

• (2) that he was intentionally disinheriting her, that MAYBE could put this father who sent in the questioning line to inherit, but it doesn't end the question


• We don't know from this if the sister named in the Will had any children who survived her

• If she did, those children might be the ones with the best claim, especially if the Will contained some of the customary language that her children would inherit if she couldn't

• Assume for the sake of the question that the sister left no children, though

• Still leaves the question of the wife's rights

• Usually a valid Will would be enforced by the courts, but here the divorce was still going on

• That means (1) she is still his wife, and (2) the divorce court hadn't yet divided their property

• Wife may seek to (1) have the Will set aside, or

• (2) seek most or all of the estate, depending on its size, or

• (3) at least ask for an elective share of the deceased husband's estate

What's an elective share?

• Simply put, even if a Will tries to disinherit a spouse, the law will usually permit that surviving spouse to claim up to 50% of the estate

• Public policy against disinheriting spouses

• Here, everything the two spouses owned was still marital property, really

• Not yet divided by a divorce court

• She can argue that in the divorce some of the property the husband had would have come to her

• Or she could even try to argue that because the heir named in the Will, the sister, was dead and couldn't inherit, AND IF THAT SISTER HAD NO SURVIVING CHILDREN OF HER OWN, that the will doesn't count at all

• That really, the husband died without a will, and that his estate should come to her as surviving spouse

• Much will depend on the size of the husband's estate

• Here, he has a surviving parent

• So wife potentially gets the first $300,000 plus 3/4 of the rest


• Two possible reasons; we know:

• (1) They were still legally married, and

• (2) the person the husband named as heir in his will died at the same time he did

• We haven't seen the will, but it sounds as though this questioner's son didn't name anyone else to get his property if the sister didn't survive him, and we're assuming the sister didn't have any children either

• So the wife can argue that this husband died intestate, meaning without a will

• A married person without children, as in this case, if they die without a will, their surviving spouse usually inherits everything - as I said a moment ago, it will depend on the size of his estate as to whether his dad potentially gets anything


• Take a copy of the Will to a lawyer, first of all

• ND Supreme Court case back in 2011 had similar facts, except both parents were deceased

• This one is different in that way

• There, because he left no parents, his wife got it all

• Here, if his estate was big enough, his dad might receive a portion

• Case law says that a final judgment of divorce affects inheritance; here they don't have one

• Question about whether the sister had any children to take the inheritance she was slated for, and if the Will provided for them to get it

• But the wife is still the surviving spouse under our laws; she has rights

And what are her rights, again?

• Claim she's the surviving spouse

• Depending on size of estate, ask court to award her the entire estate because the person the husband named in his will didn't survive to claim any inheritance, and he didn't name an alternate taker

• Or at least claim elective share of 50%

• May boil down to wife's sense of fairness, how much money is potentially involved, how good or bad her relationship is with her father-in-law, things like that, which aren't really legal questions.

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