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?
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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.
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