What are the legal rights to an ex-husband's estate?

Updated March 20, 2017

A divorce often severs a spouse's right to share in the proceeds of the ex-spouse's estate. The laws of intestate succession cease to operate on her behalf and she is entitled to nothing. While an ex-wife generally has no right to a deceased ex-husband's estate, she may have an entitlement to it under some circumstances.

He Didn't Update His Will

A state's laws of intestate succession come into operation when a person dies intestate, which means without a will. Where a will exists, its terms will govern the administration of his estate. If an ex-husband made his will prior to separation, he may have left a sizeable portion or his entire estate to his ex-wife by name. Amid the confusion and conflict inherent in a divorce case, parties often forget to update their wills; if the ex-husband didn't change his, his ex-wife can still share in the estate pursuant to the will. If the ex-husband remarried, however, his widow will also share in the estate and thereby reduce the ex-wife's willed share.

A Separation Agreement Specifies Claims Against the Estate

Alimony payments generally terminate upon death of the recipient or the obligor pursuant to state law. State law notwithstanding, parties are free to agree to almost anything in a separation agreement. One thing they may agree to is for the ex-husband's alimony obligation to operate as a claim against his estate in the event he dies before the end of the obligation. Under these circumstances, the ex-wife becomes a creditor of the estate whose claim must be satisfied before the residual estate can be distributed to the ex-husband's heirs.

Equitable Distribution or Community Property Claims

If an ex-wife has an open equitable distribution or community property division claim open at the time of her ex-husband's death, state law may allow her to continue litigating the claim against his estate. His executor or administrator will have to step into the ex-husband's shoes to recover as much value as possible for the estate. If the property division case is no longer open but an unsatisfied equitable distribution or community property division order remains in the case, the ex-wife may present this as a claim against the estate.

Child Support Arrears

Although an obligor usually doesn't have to pay child support after he dies and his children frequently get all or a sizeable part of his estate, the existence of a child support arrears balance may give his ex-wife an entitlement to a claim against his estate. Just as with unsatisfied equitable distribution or community property judgments, child support arrears can be collected out of estate proceeds. Furthermore, many states have implemented laws specifying that child support arrears constitute a lien against real and personal property of the obligor.

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About the Author

A practicing attorney since 2003, Rob Jennings has written fiction and nonfiction since 2005, with his work appearing in a variety of print and online publications. He earned his Juris Doctor from the University of North Carolina at Chapel Hill.