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does the surviving spouse get the money?

jane doe writes her will in 1990, giving all to her husband, john doe. if he doesn't survive her, all goes to their two kids, dick & mary.

john doe dies in 1998.

jane doe marries bob smith in 2000.

jane doe dies in 2008, and her children locate unclaimed property in her name, making a claim based on her will.

so does bob smith, the second husband, have any rights to that money?

Update:

the state she lived and died in would be michigan.

only one of you said that her remarriage voided the will.

for those of you who believe the will stands, i'm wondering if you're assuming she didn't amend that will or write another after she remarried. what's to prevent the kids from presenting an old version of her will - one that favors them?

5 Answers

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  • M S
    Lv 5
    1 decade ago
    Favorite Answer

    It depends on the laws of the state in which they resided and possibly on the laws in the state in which she died. Some states have laws governing estates of people who died there as well as people who resided there.

    In some states, he would be entitled to half of community property. In other states, he would be entitled to a widow's dower (often the household goods and 1/3 of real property as well as half of joint bank accounts and so on). As far as I know, one cannot disinherit a spouse with whom one is cohabiting, although I'm not a lawyer and don't know the ins and outs of all 50 states. I know *nothing* about Canada, Australia, or the UK.

    It would appear that when John Doe died in 1998 (thus making Jane Doe's will default to the children as heirs), he left *his* property directly to the children rather than to Jane--the mention of "unclaimed property in her name" making that seem reasonable. When she remarried in 2000, she voided her previous will by the act of marriage and would have needed to make a new one, even if she had an antenuptial agreement with Bob Smith. The most her kids can hope for is either her half in community property states or what's left after the widow's dower in most of the others--or whatever the state law provides for when one dies intestate (without a valid will).

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  • Depends on the state. Some states have rules regarding a spouse's right to an estate, preventing the deceased from willing all assets.

    But if the state does NOT, then the property goes to the kids.

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  • 1 decade ago

    Bob may have a claim to a portion of the community assets, that is, assets acquired during his marriage to jane. However, everything jane owned prior to marriage goes to the kids. Everything in jane's name will presumably NOT be considered a community asset, so it will be bob's burden to rebut the presumption if he feels something in jane's name is a community asset.

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  • 1 decade ago

    The will is the "legal" instrument. If there is no will is when things can be a real mess.

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  • wizjp
    Lv 7
    1 decade ago

    Nope. Will says it all.

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