When a Husband Dies, What is the Wife Entitled To?
Losing a spouse is often a devastating time for the surviving spouse. They are grieving the loss of someone special while also trying to manage the affairs of the estate. If the deceased person was the one primarily in charge of bills and assets, it can be even more confusing. As the surviving spouse, you may wonder what the next steps are to transfer ownership into your name or even what you’re entitled to from the deceased husband’s estate.
If the Husband Had a Will or Trust
If your husband took the time to contact an estate attorney and set up an estate plan with a trust and/or will, the financial situation should be much easier for the wife.
When a person has created a will, it is said that the estate is testate when they die. If there is no will, the estate is intestate after their death.
The Probate Process
The will covers all assets that go through the probate process. Probate is a legal process that requires the court to oversee all distribution of assets. The probate court ensures that the instructions of a valid will are followed, and the decedent’s wishes respected.
An executor is appointed to oversee the management and dispersion of the estate. If the will named someone to act as executor or personal representative, the probate court will need to approve them and provide them with letters of testamentary to give them authority to make decisions and complete transactions.
If the will doesn’t name someone or that person is unable or unwilling to take the job, the court will need to appoint someone in accordance with the state law on estates. Once appointed, the executor will take inventory of the estate assets, notify beneficiaries and creditors of the decedent’s death, and file taxes and pay bills.
Property Not Included in Probate
Not all of the estate’s assets will be included in probate. Certain assets will go straight to their beneficiaries. Examples of assets that don’t need to be included in probate are:
- Life insurance policies
- Retirement accounts
- Bank accounts
- Investment accounts
- Assets in trust
These assets can go to the beneficiary as long as someone is named as the beneficiary. Some states also allow you to transfer the title of vehicles if someone was named as transfer on death (TOD).
A few states also allow for real property to be transferred with a quit claim deed, which names the beneficiaries when the owner dies. To find out which property you can transfer ownership of without going through probate, you can talk with a probate attorney.
Inheriting with a Will
When there’s a will, the surviving spouse will inherit according to how it has the estate is designated. Any assets not included in probate will go to the designated beneficiaries.
The decedent can leave their estate to whomever they wish as long as it is stated in the will. They may choose to leave the entire estate to the surviving spouse, half to the spouse and half to the children, nothing to the surviving spouse, or however they wish to distribute their assets.
When the Estate is in Trust
If the spouse put the entire estate in a trust, the assets will go to whoever is designated as the beneficiaries of the trust. They may not receive it right after the person’s death if the trust stipulates another time. For instance, the owner of the property may want to wait until the children are of a certain age to inherit or until they get married.
The surviving spouse may receive all or part of the trust and be the trustee that distributes the funds as needed. A trust can be set up in many ways, which is why it’s a good idea for the surviving spouse to hire an estate attorney to help with setting it up.
Assets with joint tenants are handled similarly to those with named beneficiaries. Any jointly owned property would go to the surviving tenant. This is commonly seen in bank accounts and rental properties or other real property.
These joint property assets aren’t included in probate and don’t follow the terms of the will. If there is a discrepancy between the two, the documents showing the joint tenancy and POD or TOD will take precedence. A probate litigation attorney can help the surviving spouse navigate through any issues and enable you to avoid estate litigation in many situations.
If the Husband Dies Without a Will
If the spouse dies without creating a will, their estate will be distributed according to the regulations in the probate law of the state where they lived. Each state has its own laws for probate and how property is distributed.
Some states follow the Uniform Probate Code or parts of it while others have their own probate law. The legalese can be difficult to understand, which is why you may want to seek professional advice from a probate litigation lawyer.
Many states allow the surviving spouse to inherit half of the deceased spouse’s estate and the children to inherit the other half equally. However, this is only one scenario dealt with in probate laws.
What about adult children from a previous marriage? Or grandchildren the couple were raising? When a husband dies, what is the wife entitled to in each of these scenarios?
State Probate Law
Without a will in place or a trust holding the assets, state probate law will dictate how the deceased spouse’s estate is divided up and who receives how much of the community property when the spouse dies. If you’re not sure how much you will receive from probate, you can consult with a probate attorney.
Any property that lists the spouse as the beneficiary will automatically go to them and not be included in the probate estate that must be divided up by the court. Your attorney will let you know which property qualifies to avoid probate.
Community and Individual Property
Another thing to consider when a spouse dies is whether the property is community or individual. Many states consider all property purchased during the marriage to be community property. Others consider whose name is on the title or deed and may label it as individual property. Separate property is handled differently than community property. The laws of the state where the husband lived will affect what the surviving spouse inherits with the husband’s separate property based on state and federal laws.
The Primary Residence
The house where the surviving spouse lived may be in the husband’s name only but be the primary residence of the couple. The wife could still inherit the house, but other factors would be considered. The length of the marriage and whether it was purchased prior to or during the marriage would also influence the decision as to how it would be distributed.
When the House Was Your Husband’s
If your husband received the house as an inheritance or gift or purchased it before the marriage, he may have the right to give it to someone other than the surviving spouse even if the wife still lives there with or without the children. However, you may have some protections available to allow you to stay there for a while or even permanently.
Some states provide a homestead rule, which may allow you to live in the home even if it’s not community property until the children are grown. You may gain temporary ownership of the property or be able to continue residence long-term.
The court will determine whether to grant these protections based on need, length of the marriage, and other factors. This kind of situation can get complicated, which is why it’s important to work with an estate litigation lawyer who can fight to keep you in your home after the death of your husband.
Why You Need a Will
If you’re married, you don’t want to assume that your surviving spouse will get all your assets after you die. In fact, it’s fairly certain that they will only receive a portion of your estate without a will to designate otherwise.
A will ensures that the people you want to inherit will receive what you intend for them. It’s important to consult with an estate planning attorney to help you set up your estate plan correctly.
Another benefit of a will is that it designates what you want to happen with individual property, such as personal assets you bought or your individual income. Only a few states follow the rule that all property purchased in a marriage is community property. The longer a couple is married, the harder it may be to tell which is separate and which is common property.
When the Spouse is Left Out of the Will
In some instances, the wife may be left out of her husband’s will. Most states will still provide some protection for the wife, which may depend on how long she has been married to him and whether there are children.
For instance, New York law allows the wife to receive one-third of her husband’s estate even if the deceased spouse didn’t include her in the will. If there were no children, that amount increases to half.
The surviving spouse is usually given some part of the estate even if she wasn’t included in the will or for a lesser amount than what is allowed by state law. The exception is if she signed a prenuptial agreement that waives her rights to community property. She can seek advice through an attorney who will let her know if estate litigation will be of any help.
When the Couple Was in the Middle of a Divorce
Another situation outside of the norm is where the couple was in the middle of divorce proceedings at the time of the husband’s death. A divorce cannot continue after a person’s death, so the couple would still be considered married. The wife would inherit as a normal surviving spouse. The adult children could contest the will and the validity of the marriage, which would leave it to the court to decide.
Many states recognize common-law marriages, but what constitutes them can vary by state law. When your common-law spouse dies, you may need to prove your common-law status. Once you have provided proof of your common law marriage, you are entitled to inherit the spouse’s share of the decedent’s estate.
Wife as Executor
As the surviving spouse, you are entitled to be appointed as executor of the estate for your deceased spouse. This means you can handle the distribution of the estate and all the tasks involved.
You have the right to contest the will if you doubt its validity or if you think it was created under duress. You can’t contest it just for the reason that you don’t like what it says.
Seek Advice from an Experienced Probate Litigation Attorney
As the surviving spouse, you have a right to inherit from your husband’s estate. How much of the estate you are entitled to and what other rights you have may vary, based on the complexity of the estate, whether there was a will, if others will be inheriting, and if the will is being contested. It’s best to work with a probate attorney to ensure you get what you are entitled to for your inheritance.
Proper estate planning can prevent many of the issues experienced when a husband dies and the surviving spouse is attempting to get their inheritance from the community property. An estate planning lawyer can help you know what to do about community property interests and separate property in the decedent’s estate. They will be aware of intestate laws and file all estate planning documents to support any actions taken. Estate planning protects the surviving spouse and any surviving children for all real and personal property.