Valencia, CA asked in Divorce for Maryland

Q: My son died while separated from his wife for three years. Is she entitled to his estate

She left him for someone else and moved in with the other man whom she left after a few months. My son wanted a divorce but she did not as he was in the Air Force and wanted his benefits.

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1 Lawyer Answer
Mark Oakley
Mark Oakley
Answered
  • Rockville, MD
  • Licensed in Maryland

A: In Maryland, as in most states, a surviving spouse has inheritance rights to their deceased spouse's estate. Absent a divorce decree entered before death, or a signed property settlement agreement, or a prenuptial or postnuptial agreement, those rights remain intact so long as they remain married through the date of death. The rights vary by state, and by whether there are children involved, and whether any of the children are minors, and if there are surviving parent(s). The existence of a will and what it provides will also impact the analysis. Maryland has recently enacted a statute expanding surviving spouse's rights to estate assets of their deceased spouse where those assets are traceable to marital property but are not included in the deceased spouse's estate due to how they were titled or if transfered upon death by beneficiary designations. You do not provide enough information to understand the circumstances completely, so your best option is to discuss the issue with an experienced lawyer. Maryland Estates and Trust Code 3-102 governs how a married person's estate is distributed when they die without a will. If there is no will and there are no children, but a surviving spouse and parent(s) of the deceased person, then the surviving spouse's share depends on whether they were married at least 5 years or not. If less than 5 years, then the surviving spouse's share is the first $40,000, then one-half of everything else, and the parent(s) get the other half. If married at least 5 years, then the surviving spouse inherits everything. The fact that they were separated and living apart does not change these inheritance rights, in the absence of a property agreement of some kind. Heirs to an estate may, however, settle any disputes over distribution by written agreement, so it is possibe to alter the statutory inheritance scheme in this manner.

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