Can son’s separated wife claim on his mother’s will?

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Caroline’s son and his wife are separated but not yet divorced. Can she claim any inheritance if Caroline were to pass away before the divorce? Estate planning lawyer Rod Cunich suggests a series of important steps.

Q. Caroline
My son and his wife have been separated for four years. If I die before they are divorced, can my son’s wife claim half of his inheritance? After they are divorced, can she claim any of his inheritance?

A. Caroline, you need to encourage him to do two things: get a divorce AND complete a property settlement with his ex-wife.  She wouldn’t automatically be entitled to half of his inheritance, but until all the loose ends are tied up, she would have a claim on his assets, including any inheritance he may receive. 

It is not possible to determine what portion of his assets she might be able to claim as there are insufficient facts available. 

You also need to find out if he has a will and who he has nominated as beneficiary – his ex-wife may still be his named beneficiary, something that happens all too often. 

If he has no will when he passes away, there is a risk that under your state laws, his ex-wife might end up with all his property. 

You and your son need to see an estate planning lawyer together to talk through the risks and the steps necessary to address them. Certainly, your son preparing a fresh will is an easy and good start.

Rod Cunich is a lawyer with more than 30 years’ experience and who specialises in estate planning. If you have a question for Rod, simply email it to: [email protected]

Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature – legal advice should be sought.

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8 Comments

Total Comments: 8
  1. 0
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    I recieved an inheritance after I was seperated BUT before divorced. My ex’s lawyer told him that if I DON”T spend the inheritanace then he has no claim on it. But if I did he did- which makes no sense to me, as how can you claims something that has been spent???
    I then used all of the inheritance to buy a unit for one of our daughters. When the lawyer hear about it, she then told my ex he had a claim, but he told her to get st….
    A settlement between 2 people is what you make it, and not what the lawyers say. The lawyers are there to advise you, but in the end it is what the 2 people agree upon. My lawyer wasn’t happy with a couple of things I agreed to in our settlement. But i was and there wasn’t anything she could do about it, other than advise me.

  2. 0
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    A will is not worth the paper it is written on. A high cost for nothing. Lawyers write it up , then contest it and your wishes are not respected.

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      Agree Don. Wills are a waste of time as you have a moral obligation to leave something to your children. Even if they are drug addicts etc. etc. Our next door neighbour left her $$ to her 6 children equally. The youngest of the 6 children is on the DSP(mental health issues). State Trustees successfully sued on her behalf for more than her 1/6th of the will so she could have a roof over her head. She probably would have got about $300k from her share but she ended up with well over $500k. it was good that the youngest was looked after properly. But the others have mortgages with children etc. And some of them have as many problems as the youngest. So yep wills are just toilet paper!

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      “a moral obligation to leave something to your children”…….

      There is no obligation whatsoever. You may want to, the kids may even expect it, but you can leave it all to the cats’ home if you choose or spend the lot – assuming you have anything in the first place and have nothing left to leave. Ultimately it is up to the executor to carry out your wishes

      The issue is that the law allows those who feel hard done by, or those who were dependent on the deceased, to make a claim on the assets. And that claim is regardless whether they were actually left anything or not. Unfortunately, death brings out the best in some and the worst in others.

  3. 0
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    Get the divorce, you can do it on line pretty much, the settle ALL property through the family courts. She’s then on her own & will have very little chance to make any future claims. See a lawyer together as reccommended

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      Except in the event Caroline died very soon after the divorce, the wife could in all liklihood claim her payout wasn’t fair because the inheritance wasn’t declared in the asset list and that the agreement was rushed through before Caroline died to defraud her of her rights! The ex-wife could tie up the inheritance for years! And remember that legal fees come from the inheritance too!

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      That is why you need to finalise all property through the family courts. Less chance of anyone making a late claim including an over greedy ex spouse. Same goes for defacto relationships only you don’t have to go through the divorce process just property finalisation through the family courts.
      In this instance they have been separated for 4 years so I don’t think it would be classed as “rushed through” as you can apply for a divorce in most instances after 1 year of separation, also Caroline doesn’t say she is in bad health etc so why should anyone have to declare a future possible inheritance, inheritance only applies once you’re dead
      We can all be gone tomorrow if our numbers up including you KSS, hope all your affairs are in order

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