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Who gets what if spouse dies before divorce is final?

In general, a surviving spouse is legally entitled

In general, a surviving spouse is legally entitled to claim one-third of your estate at your death even if you were estranged. Photo Credit: iStock

A wife medically abandons her terminally ill husband and files for divorce. He dies before the divorce is close to final. He changed his policies to us before his death, so can we — his family — fight for the divorce decree?

 

No. "The divorce action dies with him," says Willard DaSilva, a Garden City matrimonial lawyer. But his widow probably won't get his life insurance policy proceeds if he designated other beneficiaries.

As a surviving spouse, she's automatically entitled to claim $50,000 or one-third of his estate, whichever is greater, no matter what his will says. She even can make that claim against assets he owned jointly with someone else, or against an IRA with another named beneficiary; but in general, this spousal right can't be exercised against life insurance. Moreover, she'll lose her right to one-third of his estate if you can satisfy a court that she abandoned her husband, says Lynne S. Hilowitz, a New City estate lawyer; but that's not easy, she adds.

It's not enough to show she neglected his medical care, explains Eric Penzer, a Uniondale estate litigation attorney. To disqualify her as a surviving spouse, you must prove either physical abandonment — which means she left their marital home without his consent and without justification, and stayed away until his death — or constructive abandonment, which means she refused to have sex with him for more than a year. And you may not get to cite anything he told you as evidence that she abandoned him because New York law generally doesn't let witnesses with a financial interest in a case testify about their conversations with the deceased.

The bottom line In general, a surviving spouse is legally entitled to claim one-third of your estate at your death even if you were estranged.

Websites with more information nwsdy.li/rightofelection and nwsdy.li/abandonment

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