It can be quite a shock when a widow discovers assets she thought would automatically be transferring to her are not. This can happen when there are errors in planning (or lack of), beneficiary forms are not updated correctly over time, or sometimes outright omissions by your husband that come as a disappointing surprise. When this happens it’s important to contact an attorney to represent you and know what your legal rights are when it comes to inheritance of your husband’s estate.
For example, if a married man left his entire estate to his brother and nothing to his wife, the courts would overturn his wishes, to the extent state law required. Or, if your husband died without a will, you may get only the percentage of his estate the law requires, even if it was his intention to leave you everything. So long as you did not waive your rights in a pre-nuptial, anti-nuptial, or other agreement, you are typically entitled to a share of his estate. Since each state’s laws are a little different, it’s best to check with your lawyer or advisor. But in general, you’re entitled to a percentage – usually 33% – 50% – of your husband’s estate whether or not he leaves it to you in his will.
Inheriting Joint Property
If you and your husband own property as joint tenants with rights of survivorship, all of the property – whether real estate, bank accounts, investment accounts or other holdings – becomes yours automatically at his death. All you need to do is transfer the title to your name.
Handling Lump-Sum Payouts
If you’re named as the beneficiary of your husband’s 401(k), IRA or other retirement plan, that money is paid to you directly after his death. For your husband to name anyone but you as the beneficiary of his 401(k) your written advance consent would have been required. If you are not the beneficiary of his 401(k) plan please speak with your attorney about federal laws governing spousal rights to this asset. However, at his retirement and once the funds were rolled into an IRA, he could have named anyone unless your state imposes your consent otherwise.
File For Your Spousal Share
If you are not left in your husband’s will, there is no will, or there is a dispute regarding beneficiary designations at the time of his death, it is important to contact an attorney immediately to represent you. Most states have a “right of election process” to claim your spousal share of his estate. Even if his will was executed before your marriage, in most cases, as the surviving spouse you are entitled to the spousal elective share.
An attorney will file the necessary forms within the statutory time period to protect you from being disinherited. If the process is not completed properly and in time, you may lose your share of his estate forever. The typical time frame in most states to hire an attorney and complete the process is 6-9 months from his date of death.
If you have any questions regarding a specific situation you are concerned about, email me. I am happy to provide guidance or point you in the right direction to get you the help you need.
Any opinions are those of Laura Amendola and not necessarily those of RJFS or Raymond James. The information contained in this report does not purport to be a complete description of the developments referred to in this material. Raymond James does not offer legal advice. You should discuss any legal matters with the appropriate professional.
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