"That woman was only married to Dad for six months before he passed away. Why should she get anything?" That is a question we have heard a number of times in probate cases. It is a difficult subject for many families when the parent has children from a prior marriage, marries a second time and then passes away without a will.
The children of the decedent argue that it is not fair that the recent wife should get most of Dad's assets, but the law is clear about the widow's rights.
As a general matter, the probate code does not differentiate between marriages that have lasted for six months or sixty years.
The law says that the widow is entitled to the first $225,000 of the probate estate plus half of what remains. In addition, the surviving spouse is given $15,000 of the decedent's personal possessions as well as a motor vehicle.
If the homestead was titled in the name of the decedent, then the widow gets the right to live in the homestead (or rent it out as she wishes) for the rest of her life. She does have to pay the property taxes and certain other costs.
These automatic distributions may be set aside if the decedent and his new wife signed a premarital agreement or if certain assets were dedicated with beneficiary designations.
However, even beneficiary designations can be overruled by a spousal election for a spousal share of those designated assets.
Obviously, the possible disputes between the spouse of the decedent and the stepchildren can become complicated and contentious. Both sides should contact experienced probate attorneys to evaluate their legal positions and represent them if the circumstances justify legal proceedings.