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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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.
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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.
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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.
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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,
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