Q: My x-husband has died and his will is in a trust. His biological daughter is not listed in the will.
Should she challenge the will and is she entitled to 1/2?
A:
It really depends on how the will is drafted. The law in Ohio is that “a testator cannot, by any words of exclusion used in his will, disinherit one of his lawful heirs, in respect to property not disposed of by his will.” Crane v. Exrs. of Doty, 1 Ohio St. 279 (1853), syllabus. “[T]he heir at law can be disinherited only by a devise of the property to another.” Mathews v. Krisher, 59 Ohio St. 562, 574, 53 N.E. 52 (1899).
In English, this means that if the property was specifically provided to another, such as the trust, then the daughter is disinherited. If this was a pour-over will, i.e. one that puts all of his assets in trust, then she is likely disinherited.
This assumes that the will was executed correctly. If it was not, then the bequests are invalid, and the property passes from ordinary descent and distribution, and she would be entitled to take under the estate.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
