Concord, NC asked in Estate Planning and Probate for North Carolina

Q: False DV report to shelter w/ no police report against my deceased dad so she can claim inheritance. Can she do this?

He passed away last year & had not seen his wife in 4 years. She abandoned him & has been w/ multiple men. She refused to sign divorce papers & went into hiding. After he passed away she has reappeared claiming she only left for a few months & remained faithful but had to leave due to him abusing her which he did not do. I am the executor of the estate & am trying to fight her but now she has submitted paperwork from a DV shelter saying she stayed for 30 days in 2016 due to my dads abuse but no police reports, hospital records. They noted a small scratch on her arm & some bruising. My dad had not seen her since she left in 2013 & has tried numerous times to find her for a divorce but she hid from him. Can she file claim for all of his inheritance? He didnt have a will & no beneficiary on the life insurance but his 401k is split 50/50 between her & myself. She is claiming it all, what can I do to stop it? Can the false DV shelter report be used? She also remarried 6 months after he died

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2 Lawyer Answers
Amanda Bowden Johnson
Amanda Bowden Johnson pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Jacksonville, NC
  • Licensed in North Carolina

A: If you father had no will, anything that doesn't automatically pass (such as joint accounts and life insurance with named beneficiaries) will pass via intestate succession which if you are the only child is spouse inherits 1/2 of intestate real estate and a portion of intestate personal property (if you die with personal property worth $60,000 or less, spouse inherits all of it; if you have more than $60,000 worth of personal property, your spouse inherits $60,000 plus 1/2 of the balance) child or descendants inherit 1/2 of your intestate real estate and any intestate personal property remaining after the spouse’s share. Whether or not they were separated, she abandoned him or how faithful she was or when she remarried is irrelevant so not even sure why she is bothering to go thorough the trouble of making up stories - she doesn't need to, she will likely get a significant portion of the estate. If beneficiaries were named for the 401(k) she should have been given her half a long time ago. While your version of the story paints her as undeserving and she likely is, there is no question the majority of the blame for this situation is your father's for not making the proper arrangements.

Sara W. Harrington
Sara W. Harrington
  • Estate Planning Lawyer
  • Carrboro, NC
  • Licensed in North Carolina

A: First of all, I'm very sorry for your loss.

I'm afraid there is nothing you can do to fight your father's wife's claim. Even though your father could not find your mother to serve her with divorce papers by personal delivery, registered or certified mail, or by a designated delivery service, he could have served her by publication and gotten a divorce. This means, that after a diligent attempt to locate the spouse with no luck, the spouse wanting the divorce can have a legal notice run in a local paper once a week for three successive weeks. That is deemed by North Carolina law as sufficient notice to proceed with a divorce.

Because they are still married, she has all the rights a spouse would have. That means, she has a right to spousal allowance and an intestate share of his estate.

The 401K is handled outside of the estate. Because you and the wife are listed as beneficiaries. You will receive shares of his 401K in the amount he listed on his beneficiary form.

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