Q: If 86 year old single Father has Will drawn up bequeathing everything to only child. Has deed to house in Daughters name
Daughter is executor. All finances in His and Daughters name. Six months later decides to get married for 4th time. Was told by Lawyer pre nup not necessary and Wife doesn't even have to be acknowledged in Will, because he has no estate. Should all go to Daughter is this correct?
A:
The situation may be governed by the following provisions:
§ 64.2-422. When omitted spouse to take intestate portion.
If a testator [the person making the will] fails to provide by will for a surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate such spouse would have received if the decedent left no will, unless it appears from the will or from the provisions of a valid premarital or marital agreement that the omission was intentional.
§ 64.2-302. When and how elective share may be claimed by surviving spouse.
A. A surviving spouse may claim an elective share regardless of whether (i) any provision for the surviving spouse is made in the decedent's will or (ii) the decedent dies intestate.
B. The surviving spouse of a decedent who dies domiciled in the Commonwealth may claim an elective share in the decedent's augmented estate within six months from the later of (i) the time of the admission of the decedent's will to probate or (ii) the qualification of an administrator on the decedent's intestate estate. The claim to an elective share shall be made either in person before the court having jurisdiction over administration of the decedent's estate, or by a writing recorded in the court or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55-106 et seq.) of Title 55.
C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside of the Commonwealth to take an elective share based upon the value of property in the Commonwealth is governed by the law of the decedent's domicile at death.
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