If a father died and left everything to his children but not to his spouse, is that even legal?

UPDATED: Apr 21, 2014

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If a father died and left everything to his children but not to his spouse, is that even legal?

The live in a community property state.

Asked on April 21, 2014 under Estate Planning, Washington


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

A father is not required to leave any portion of his marital estate to his spouse.  The emphasis here is his portion of the estate. A follow-up emphasis is for portions of the estate not automatically disposed of by other means. 

Example, if father owns a motorcycle that he owned before he married wife, then that would be considered separate property and he could leave all of the ownership interst to his children.  However, if father and spouse also purchased a house together and the purchase agreements and deeds gave wife the right of survivorship on this death-- then wife could obtain ownership of the entire house because of that document... because rights of survivorship are automatic. 

I father and wife owned a RV that did not inlcude language of right of survivorship-- then father could only give his 1/2 interest in the RV to his children.  He could not give, even by will, her 1/2 interest.

The bottom line, what father can give and not give depends on what his ownership interest in the property is.  It also depends on what wife's ownership interest is.  To know for certain what property should be disposed of by will versus some other means (like right of survivorship), the children and spouse should have a probate attorney review all of the documents associated with the purchase and management of each item of disputed property. 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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