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What happens if you die without a will?

Montclair, NJ |

If a divorced parent refuses to leave a will what happens to their estate? Does their ex-spouse have any claim to their estate? If so, how can that be prevented? If not, what happens to any wealth they may leave after their death?

Attorney Answers 5

Posted

I believe an ex-spouse has to be expressly named in a will or life insurance policy. I don't think the law permits that person to take under the will.

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Posted

As Mr. Savage advises you, an ex-spouse has no claim against his or her former spouse's estate. The only thing that may appear to be an exception to that is that the surviving parent may act as the guardian for any children of the marrage in holding the decedent's assets on behalf of the children.

If one dies without a will, then that person's assets are distributed in accordance with the laws of the state in which that person resided at the time of death. The assets that will be distributed in intestacy are those that were not jointly held and those which did not have a designed beneficiary.

Good luck to you.

Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement.

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Posted

I agree with the prior attorneys. An ex is not entitled to any estate assets of a former spouse if the latter dies without a will. The laws of instestate succession of the state where the decedent resided would determine who gets what. Often that is not what the decedent wanted. It is very prudent to have a will drafted so that the state does not decide where the estate assets go.

Hope this helps. Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net . For further tax advice visit his website at www.sjfpc.com . and blog at >

LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.

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Posted

In New Jersey, if you die without a will, your estate is settled by the intestacy statute. An ex-spouse has no rights. Assets are divided as follows. If there are non-probate assets such as jointly held accounts, life insurance and retirement plans, they go to the named beneficiary. The statute only applies to probate assets. Probate assets pass to a combination of current spouse and children of prior relationships. If there is no spouse, it goes out to the children. If there are no children or spouse, then parents. If not parents, then to siblings and their descendants.

This response does not constitute the establishment of an attorney-client relationship. It is also not to be taken as firm legal advice as such would be contingent on a full inquiry by the attorney into the complete background of the facts and circumstances surrounding this matter. The response is meant to be a helpful guide to a question in a manner which reflects the limited information provided by the inquirer.

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Posted

As has been pointed out when a person dies without a Will their probate assets (those assets that are not joint with a right of survivorship and do not name a beneficiary) pass in accordance with the laws of intestacy in the State where the decedent resideded. If the individual lives in NJ you can see my legal guide for a detailed explanation of NJ's intestacy statute.

The intestate heirs of a single person with children are the children which leads to the questions of how old are the children? If the children are minors a Guardian may be appointed to receive the inheritance and the ex-spouse may well be that Guardian. Furthermore the children would be entitled to the money at age 18 and a responsible 18 year old capable of handling any significant inheritance is a very rare thing. For these reasons if the children are minors (or in my opinion under age 25) it is vital that the parent have a Will placing the funds in trust for the children until the children reach an age or ages determined by the parent. The Will would also name the Trustee over the funds to ensure that the proper person was in charge of the funds.

Lastly, while the ex-spouse has no inheritance rights; if the deceased spouse was paying alimoney or child support there is the chance that such obligations are enforeceable claims against the estate which could be presented and paid prior to any distribution to the beneficiaries.

As you can see planning for a single parent can be complicated and it is essential for any parent to have a comprehensive estate plan in place.

Very truly yours,

Ed Smeltzer

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This answer was prepared for educational purposes only. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question.

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