What is a wife’s entitlement to her deceased husband’s benefits if he “remarried” without divorcing her first?

UPDATED: Jan 7, 2012

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What is a wife’s entitlement to her deceased husband’s benefits if he “remarried” without divorcing her first?

My father left my mom and moved out of state where he got remarried; he lied on the application and stated he never married before even though he is still married to my mom. He died while married to the new wife and she got the benefits. What can I do about it?

Asked on January 7, 2012 under Family Law, Virginia


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

I am so sorry for your loss and for the problems you have had in this situation.  Your Mother needs to establish that she and your Father were never divorced.  Did you receive notice of his death and of the probate of his estate?  You should have and you should take advantage of that knowledge.  Now, I do not know what benefits you mean here.  Pension benefits? How he named his beneficary is important but your Mom has rights as his legal wife regardless.  She has a right to elect against his estate, meaning that she can not be left out of the probate of a Will or administration (as it is called in New York when you die with out a Will) and has a right to a certain amount of his estate by law.  You need an attorney to help you here.  It is too complicated to do alone.  Good luck.

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