If my uncle died and was married but separated, canhis wifeclaim anything that was not left to her in the Will?

UPDATED: Jul 11, 2011

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If my uncle died and was married but separated, canhis wifeclaim anything that was not left to her in the Will?

My uncle died and his estranged wife (separated for 10 years) is trying to take property that was not left to her in his Will. His house was left to his 15 year old child (who is not the child of the estranged wife) but the wife is trying to take it. She was only left 5% but says she is entitled to everything and the Will means nothing. Can this happen? What is she entitled to since they are still legally married?

Asked on July 11, 2011 under Estate Planning, Florida


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Unfortunately she may well be able to claim more that what was gifted to her in his Will. Like it or not in the eyes of the law she was still his wife (this is why once it is recognized by the parties that a marriage is irretrievably broken, they should move forward with a divorce).

Under state statute a spouse cannot be disinherited or be left more than a minimum share of an estate (as in this case). This is known as the spousal right to an "elective share".  This right provides surviving spouses with a portion of a deceased spouse’s estate according to a detailed formula. This formula is based on the probate and non-probate assets of the deceased (i.e. assets distributed under the Will plus those that do not go into the probate estate such as 401k's, bank accounts, etc.). If the surviving spouse is unhappy with their bequest, they can instead take their elective share. Under FL law, the elective share is 30% of the elective estate.

Note: The surviving spouse has 6 months from the receipt of the estate's notice of administration to invoke their elective share rights or such right are deemed waived.

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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