What’s the law that governs Wills if one of the people mentioned in the Will has a spouse but is legally separated?

UPDATED: Oct 1, 2022

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What’s the law that governs Wills if one of the people mentioned in the Will has a spouse but is legally separated?

My grandfather passed away a year ago in KY. He made his Will and appointed his son, my uncle, as the executor. We all live in IL. The Will states that 50% of the assets will go to him, 25% go to my mother and 25% go to my aunt. My uncle went gone through all of the needed steps and it seemed like everything was almost done. However, he came to my mother the other day and said that since she is still legally married, half of her 25% would go to her husband. My mother is legally separated from her husband and has been for at least 5 years. All of their assets are separated; they don’t live together. They haven’t gotten divorced because they can’t afford it. My uncle said that KY doesn’t recognize legal separation when it comes to divvying out estate assets. Is this true? Is there anything that we can do about this?

Her husband hasn’t had anything to do with the family at all, so it seems highly illogical that he would get any of the assets simply because my mother is still married.

Asked on October 20, 2018 under Estate Planning, Illinois


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

A spouse does NOT receive a share of his/her spouse's inheritance: the inheritance is (to borrow a term from community property states, even though your state is not one) the "separate" property of the person inheriting, and the husband does not receive anything from an inheritance left only to your mother. Her inheritance is her inheritance (just as if he should inherit anything from anyone, it is his, not hers).

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