Can an ex-wife make a claim on the husband's estate?

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Can an ex-wife make a claim on the husband's estate?
An ex-wife generally has no claim to any part of her husband's estate. (Polka Dot/Polka Dot/Getty Images)

The laws in almost every state prevent ex-wives from inheriting anything from their husbands' estates, according to the American Bar Association. Some exceptions exist with assets that bypass the probate process, or if your divorce is not legally finalised yet. However, ex-spouses generally have no claim against an estate once a divorce is final.

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Probate Laws

State laws usually treat an ex-spouse as though she predeceased her husband. If your husband left you all or part of his estate in his will, and he died after your divorce and never got around to changing that, you won't inherit. Legally, it's the same as if you failed to survive him. This is true even if he wanted you to inherit, regardless of your divorce. The only exception is if he wrote a new will after your divorce and stated in the will that he wanted you to inherit, even though you're no longer married.

Non-Probate Assets

Some assets don't go through the probate process. These include things like pensions and life insurance policies. These assets pass directly to a named beneficiary "by contract," so they circumvent probate and they're not legally a part of your ex-husband's estate. If he named you as the designated beneficiary of such an asset and didn't change that after your divorce, you would probably still receive the asset. You would have to contact the company directly. The exception is if you signed a premarital or postnuptial agreement waiving your right to the asset in the event your marriage ends.

Intestate Shares and Elective Shares

Most states will not allow a husband to disinherit his wife. If he tries, she can claim an "elective share" against his estate, up to about half of his probate assets, minus anything she inherits through joint ownership or a named beneficiary designation. She elects to renounce his will and take the share allotted to her by law instead. If he dies without a will, she would inherit under her state's intestacy laws as his spouse. Intestacy laws list a succession of heirs to inherit when someone dies without a will, and his spouse is usually the first in line, though she may have to share a portion with his children. According to the American Bar Association, your intestacy rights also end when you divorce. You are no longer entitled to make a claim for an elective share, either.

Tips

If your divorce is not final yet, you might potentially be able to make a claim. As of 2010, unless you and your husband have a premarital or postnuptial agreement that states otherwise, the law doesn't bar you from inheriting until you're actually divorced. Article II of the 1991 Uniform Probate Code states that even if a couple obviously intends to divorce and active divorce litigation is taking place at the time of one spouse's death, she would still inherit according to the will or her state's intestacy laws. However, a marital contract stating that she does not inherit would override this law.

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