Spousal rights after death

Spousal rights after death

My husband and I have been married almost 2 years. We keep saying we need to have a will drawn up, but we have not gotten around to it. The house we are living in belonged to my husband before we married (a hold-over from his first marriage.) In the event of his death, what are my legal rights? Adult kids involved from previous marriage exist.


There are a number of issues raised in your question, and a number of points that are unclear. We'll go through them sentence by sentence, but keep in mind, the rules differ by state, and there could be significant personal issues involved that may complicate any legal or other answer:

  • My husband and I have been married almost 2 years. We keep saying we need to have a will drawn up, but we have not gotten around to it..... The fact that you are married automatically may give each of you certain rights to the assets of the other. This is called a spousal right of election in some states. The rights you have to separate assets will be affected by state law, whether your state is a community property state, whether you and your husband signed a prenuptial agreement, whether you signed or choose to sign a post-nuptial agreement, and more. Also, and this is really important, you need more than a will. You need powers of attorney, living wills and health care proxies. And, be very careful when you sign a power of attorney because an agent can use the power to change title to assets and more. Example, your husband's adult children from a prior marriage change assets in his name to joint with them so that on death the assets pass directly to them cutting you out. Even if legally you have a claim, that type of change could seriously undermine your ability to collect what you might otherwise be due.
  • The house we are living in belonged to my husband before we married (a hold-over from his first marriage.)...... You had best inquire of a matrimonial lawyer in your state. It could be deemed separate property on which you have no claim. However, even if that is the case, what if you maintain the house, pay for expenses of the house and more? Does that change the status of the house as an asset you can claim? If you made a few mortgage payments including principal payments does that change the character of the property under state law? Might you intentionally pay a couple of mortgage payments to do just that? What does the deed say? Is the house owned by your husband alone? Have his children's names been added as joint owners to by pass you?
  • In the event of his death, what are my legal rights?.... As you can see from the discussions above there are a lot of missing facts in your question, there are potentially significant differences based on state law, and there are a lot of factual issues that have to be resolved. You really need to address some of these with a matrimonial attorney first, and then an estate planner next. If you really want the house, might your husband be willing to change the deed to re-title (change ownership) from him to both of you jointly? If you're married a long time (2 years doesn't sound long, but that's your and his call) he might be comfortable doing this. The two of you need to have one of those heart to heart/pocket book to pocket book talks.
  • Adult kids involved from previous marriage exist..... You didn't say which marriage, but let's assume from your husband's. They may very well believe the house and lots more is theirs to inherit and not yours. Promises may have been made you don't know about. They may think promises have been made even your husband doesn't know about. Also be very careful. However, cordial your relationship with them is now, after your husband's demise and when money becomes involved, all can change. To the extent you and your husband can properly deal with this all now, do so for everyones' good. Be sure to consult an experienced estate planner that has dealt with blended families frequently. Here's a test.....if the estate planner you hire doesn't address how the power of attorneys you and your husband need to sign may need to be tailored to avoid the issues of a child from a prior marriage undermining your planning, he/she is not the right lawyer for you.
  • Hey, how are you so sure your husband is going to check out before you? What if you become incompetent and your children from your prior marriage (the facts weren't clear in your question) use your power of attorney to create problems for your husband? Might your children assert claims under state law as your guardian or heirs that your payment of mortgage payments on your husband's home somehow entitles them to a share? You really need to protect your husband and all sets of kids. When there are multiple marriages, addressing everything in some detail is really to everyones' benefit (well, everyone except the litigators who may then not get future clients!!). This is not easy, its complex, and will cost a few bucks to do, but its always better to address now.

Our Consumer Webcasts and Blogs

Subscribe to our email list to receive information on consumer webcasts and blogs, for practical legal information in simple English, delivered to your inbox. For more professional driven information, please visit Shenkman Law to subscribe.

Ad Space