Can separated wife claim on will?

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]

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What if a will can’t be found?

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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