Q: I am one of four sisters. Our parents divided everything
between us in their wills. Our father
died 25 years ago. Our mother eventually remarried. A few years ago, she and
our stepfather sold the house we grew up in and moved to another state. She
died last June. Our relationship with our stepfather isn't good. We were left
out of our mother's 401(k) plan because she was under the impression he would
do the right thing. Everything else went to him, too. It's possible her will
was made while she was in ill health, and that she left her wishes to our
stepfather's discretion.
What happens when he sells the new house or passes away?
Will the proceeds of the sale go to his son, instead of being split between all
of us? We have all but begged him for anything of our mother's to remember her
by, but we are still waiting. He said he'll send some things eventually. Do we
have any rights as the biological children of our mother? -- MH via email
A: Sadly, the answer is no.
Parents aren't legally required to leave anything to their
children.
If you die with no will, state law divides your property
between your surviving spouse and your children. And if you do have a will, it cannot disinherit your spouse. But
it doesn't have to include your kids.
From what you say, your mother named you and your siblings in her original will -- the one she wrote during her marriage to your father.
That gives you the legal standing to challenge her later
will, which left everything to her second husband. But it’s very difficult to
overturn a will. The fact that your stepfather didn’t carry out your mother’s
verbal wishes is not enough to persuade a court that her will is invalid.
It sounds as if your parents left everything to each other,
and if they died in a common accident, in equal shares to their children.
That’s what most married couples do. When your father died, your mother
inherited the house and all their other assets.
She and your stepfather probably purchased the second house
as joint owners, and left their other assets to each other. As a result, he
inherited everything at her death -- and he can do whatever he wants with it.
All too often, people assume their property will be
distributed as they wish, without taking legal steps to make sure that happens.
To avoid this problem, your mother could have asked her second husband to sign a prenuptial or a postnuptial contract -- a legal document in which they
agreed to leave some of the assets they brought into their marriage to their
respective children.
As your mother’s spouse, your stepfather was legally
entitled to be her 401(k) beneficiary; but after their marriage, he could have
signed a waiver giving up that right.
As things stand, he's under no legal obligation to honor
your mother's wishes.
But a formal letter from a lawyer might help persuade him to be quicker about sending you some of the personal possessions that have emotional value to you. It's the least he can do.
Please send your
questions to Lynn@LynnBrennersFamilyFinance.com. I'm sorry I can't respond personally to every
email. Questions are only addressed online.(c) Lynn Brenner, All Rights Reserved
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