If your spouse dies without a will, his or her half share in property will pass to you as the surviving spouse. Additionally, as the surviving spouse, if there is no one else to take your deceased spouse’s property, all of it goes to you. If there is someone else to pass along the property to, such as a heir, then as the surviving spouse you will get half of your deceased’s spouse’s property and the other half will go to the heir. The share that you get will decrease depending on the numbers of heirs. For instance if there are two heirs and you are the surviving spouse, each of you will get one-third of the deceased individual’s property.
What Is the Widow’s Election?
What if your deceased spouse tries to leave his or her share of the property to someone else via his or her will? As the widow you have legal options! As the widow, you can assert both your community property rights to a particular asset or your rights under the will. In other words, by asserting your right, the court may overlook your deceased spouse’s devise and award you the property. Alternatively, if the will gives the widow more property, you may choose to take property under the will instead.
The Widow’s Election means you can either elect to receive whatever your property rights allow you to receive at that time from your state laws, or you can elect to choose to receive whatever property is left to you in the will.
What If My Spouse Put Parts of the Estate into a Trust and I’m not Named as a Beneficary?
Historically, trusts were beyond the reach of spouses. Most states have changed that rule and permit spouses to take from trusts created by the other spouse in a widow election. The only exception is if the trust was created by a third party. The purpose of this exception is to protect third parties who did not ever intend for the surviving spouse to take from the trust.
For example, a mother might leave her trust for her daughter. If the daughter dies, the husband cannot take from the trust because the mother intended the trust solely for her daughter and not her son-in-law.
Some parties might try to take advantage of the third party exception. Courts use a variety of tests to determine whether a party is abusing the rule. For example, a spouse cannot have his or her attorney create a trust and then claim that the trust is beyond the other spouse’s reach because a third party created the trust. Courts would rule that the deceased spouse had an intent to defraud the system and the third party rule would not be enforceable in this situation.