When my husband and I were getting our will and health care proxies done, our attorney told us that you can disinherit anyone, including children, but you cannot legally disinherit a spouse in NY.
This made me wonder. A friend of mine got married about 15 years ago to a woman he hasn’t seen in 10. He has no idea of her whereabouts and couldn’t contact her if he tried. He claims that he can’t divorce her because he had nowhere to send papers.
He also has a 7 year old son by a different woman. If my friend dies without a will, does that mean his estranged wife could legally come out of the woodwork and take all or part of my friend’s estate (such as it is)? Short of divorcing her, which he should do but hasn’t, can he protect his estate from claims made by his wife?
Thanks for any insight into this. I’m curious as to the legal meaning of “can’t disinherit a spouse” and how unilaterally it would be applied in a situation like this,
IANAL but I am a paralegal and when I researched this, something like 20 years ago, it was true that you could not completely disinherit a spouse in any state. In some cases, even divorced spouses couldn’t be completely cut out.
In some states you can’t disinherit children, either. I forget which ones.
Of course, you can make the will and, if it’s not disputed by some other party, it may have the effect of disinheriting one of these people. Or the law could have changed in 20 years.
Varies from state to state. A common (although not invariable) rule is that the spouse can reject the will and take a standard % of the estate. So if your state has that rule, the wife can&t be completely disinherited.
This is different from the laws which govern what the wife would get if there is no will at all. Almost certainly, she would get a higher % if he died intestate. To answer your direct question, then, if he is still married, and dies intestate, his wife would get a substantial part of his estrate every state that I am aware of.
He should see a lawyer in his state to address his issues.
I recently remarried and we did a prenup, and although I don’t remember the legal terms, if you die, even with a will that disinherits your spouse, the spouse can still go to court and get some part of the estate. It’s different than anyone else contesting a will, there’s some special situation covering spouses. You can waive that in a prenup. Sorry I don’t remember the jargon.
Tell your friend to go to a lawyer (one who knows a lot about divorce law and estate law) and have him straighten out this situation. I believe he can divorce his wife even though he doesn’t know where she is. The lawyer will then be able to write the will so that your friend’s estate will go to his son (or wherever else he wants it to go to). Your friend should have taken care of this long ago. In any case, he should take the advice of his lawyer, not us.
I think he is really insane for not taking care of this a long time ago. Believe me, after I saw my lawyer and found out that you can’t disinherit your spouse, I e-mailed him and told him. NO RESPONSE.
He thinks he can’t divorce her if he doesn’t know where she is, or that it cost a lot more money to have her tracked down. I have no idea about that either way. Anyone know?
As I recall, it’s possible to get a quick unilateral divorce in many states if you live there 90 days. Also, many states will allow you to “serve by publication” if you first do a diligent search of the ex-spouse 2b.
Hopefully my spouse won’t notice the google search I did for “quick divorce”
Can I assume your friend abandoned by his spouse lives in New York? Abandonment is grounds for divorce in New York (DRL §170.2). NY state divorce law allows “alternate service” of the summons, with the court’s permission (CPLR § 308.5). This could include publication as a legal notice in a newspaper (Dobkin v. Chapman, 1968, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451). But no doubt your friend would have to show he made a diligent effort to find the spouse’s whereabouts; for example, contacting the spouse’s next of kin, hiring a private investigator.
He lives in NJ. I think it’s the effort it would take to hire a private investigator… actually, I don’t know what the hell his problem is. I should tell him about the fact that, since he’s waited so long now, she’s going to get his SS benefits.
As for him seeing a lawyer, yeah, you know that and I know that, but… you can’t force people to take care of themselves.
At least here in SC, or so I have been told (and it quite matters, because my evil horrible half-brother is adopted) you cannot dump an adopted child, either.
A divorced spouse who receives SS benefits, based on the marriage, has no effect on the other spouses benefits.
IANAL, but I’m fairly sure that every state has a relatively simple procedure for divorcing an absentee spouse. It usually includes sending notice to the last known address and publishing a public notice for a prescribed number of days in the appropriate publications. Proof of these actions are then submitted w/ the divorce petition.
I also believe that all U.S. states have bars against disinheriting a spouse or minor child.
This info. should be easy to find online for the particular state in question.
FYI the term for the share the spouse can take, regardless of a will (in states that provide it) is an “elective share” and it is typically 20-30% of the estate.
It’s 30% in New Jersey. However I am reading that in New Jersey, parties that are separated at the time of death or live apart in “conditions that could give rise to a divorce” cannot take an elective share.
Well, I just was handed my Separation Agreement yesterday. So I can say with some certainty that in New York State, I can completely disinherit my ex, when she signs and I sign and we file as Legally Separated. This continues through Divorce and on from there.
Mind you, this is by mutual agreement that we are disinheriting. By force? No idea.
I know that you can exclude an adult biological offspring from inheritance, as I’ve been advised, on several occassions, to include a reason for doing so, in order to make the will more safe from contestibility, but I’d have to see a cite that allows minor children to be excluded. Not saying it’s immpossible, but I think it would require some unusual circumstances and I doubt it’s spelled out in existing statutes.
Come on. I said this was based on research I did nearly 20 years ago. At that time I had the cite and the state, which I believe was Kansas, but it wasn’t something I needed to remember, so I didn’t. This research was a lot of work and took many hours, all billable at the time. Not the case today.