What to do if my dad remarried before his death but did not change his Will to include his new wife?

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What to do if my dad remarried before his death but did not change his Will to include his new wife?

Dad inherited house and property from his second wife. Her children contested and it still has not been decided on. Dad’s Will left said real estate to my sister and myself along with all personal property. Dad remarried less than a year before dying and did not change his Will. His new wife took possession of all life insurance, accounts, and personal property leaving nothing but said house. She claims that she is filing funeral charges against estate. There is nothing left to maintain the property. We don’t know who the house belongs to. Can’t afford lawyer, what are we entitled to?

Asked on September 15, 2011 under Estate Planning, Alabama


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

You need an attorney, because there is no simple answer--it depends on the facts, the terms of the will, etc., and you need a lawyer to evalute those. That said, some general principals:

1) Joint bank accounts or jointly owned real estate will go to the new wife; but anything owned separately by your father (especially if acquired pre-marriage) should pass by the will. An issue may be whose name these assets are in--did he make her a joint owner? The same would apply to any vehicles--if they bought then together or she was on the title, it should go to her, otherwise, pass by the will.

2) Personal property--anything she bought, or which she brought with her to the marriage, or was bought during the marriage, is probably hers (or at least she has a claim to some of the value, as with property bought during the marriage--she may be able to make out a claim to, say, 1/2 the value); anything predating the marriage or clearly owned solely by your father should go by his will. Also, if he gifted anything to her during his life, that is hers. Of course, proving ownership can be very difficult.

3) The insurance policy will go to whomever is listed as the beneficiary. If the policy listed "my wife" as the beneficary, then she'd be it--she's the wife.

4) Funeral expenses are properly charges against the estate.

As you can see, it depends on the facts as relating to each item or asset.

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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