Q: dad died. Had will with children equal beneficiaries. Recently married. No mention her in will. How is property divided?
Children are adult children from previous marriage. Current wife was never mentioned in will. Can’t find a definitive answer. One place I read wife gets first $37,000 plus half. Other place says she gets 1/3 or equal share of children.
A: This question is more proper under the heading "Estate" or "Wills and Estates" than it is under Family Law but regardless the answer to your question is not as simple as you make it out to be. You will have to sit down with an attorney to make several determinations. Under Alabama law a spouse who is left out of a will may still claim the homestead exemption, exempt property and family allowance. In addition a spouse in such a situation has 6 months from the death or 6 months from the probating of the will to seek an elective share with is where the 1/3 figure you mentioned comes into play. If the amounts involved are at all significant you and your siblings should seek legal advice although as stated above the ball lies in her court to file for the elective share and if the will has been submitted to probate the clock is running. If she files for the elective share the court will set a hearing to determine the amount to which she is entitled.
Jack T. Carney agrees with this answer
A: As mentioned below, the specific facts of the situation are so important in determining the various rights and responsibilities of the parties. For example, it may be possible the wife could claim to be an omitted spouse (see statute below), which is where the 1/2 comes from (if she is deemed an omitted spouse, she would receive the same share as if her husband died without a Will, which would be 1/2 of the estate). As you can see in the statute, there are even exceptions to that rule. Good luck.
(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.
(b) In satisfying a share provided by this section, the devises made by the will abate as provided in section 43-8-76.
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