My grandmother passed away Feb 2012. My grandfather remarried October 2012 and died November 2012. He had a will from the 80s that said if he passes, his wife gets all his assets. If the wife passes away, his daughter receives all his assets. The new wife claims all the assets are hers. To date, the lawyers are saying the new wife doesn't own the house, but can live in it free until she moves out or passes. They are also claiming that the new wife is owed all the money through spousal support for the 3 weeks they were married. Does a will not supersede any of their arguments?
Texas does not have a pretermitted spouse statue, so please ignore all of the other responses from non-Texas attorneys unless your grandfather resided in another state. If your grandfather's will was not revoked or there is not a new will, then pursuant to the terms of the old will, the daughter inherits subject to the homestead right of the new spouse. The homestead right allows the new spouse to live in the homestead for the remainder of her life he she chooses. As for spousal support, that is a claim against the estate and they should have to have their claims approved by a probate court. The new spouse only has a claim on 50% of the community property acquired during the time of their marriage, and perhaps, a claim for payment of any necessaries incurred by the new spouse during that time.
You probably want to move forward and probate the old will in order to take charge of the situation. You should go see a probate attorney to assist you through this process.
The problem that you have is that the spouse is considered a "pretermitted heir" and is entitled to certain protections under state law. In most states, the legislature assumes that the testator "would have" changed his Will, but just never got around to it. So they allow the spouse to take a share of the estate, usually along the lines of what he/she would have received in the absence of a Will. You need to have your situation reviewed by your own probate lawyer, to make sure that your rights are being protected.
James Frederick
If Will is not yet filed for probate, this should be done after deterermining who would be appointed Independent Executor. The determination of who will be the Independent Executor if the person named is able and willing to serve is important as would who would be administrator if all named executors cannot serve. There is also the issue of who receives the tangible personal property.
Mr. Frederick is correct. The old will is still valid, unless there is a new will, but the surviving spouse would be treated as a pretermitted spouse and entitled to an intestate share. You need to talk to a probate attorney in the State and County where your grandfather passed away. In California, for example, the surviving spouse could petition for family allowance during probate and could get a homestead equal to a life estate in the marital home. In addition, in California, with only one child or issue of that child, the surviving spouse would get 1/2 of the separate property and the grandchild the other 1/2.
With all that said, you need to contact a probate attorney. This could get nasty and complicated. The Will from the 80's should be probated.
A wife has rights regarding inheritance against the terms of a Will and in most states it doesn't matter how long they were married. You mention there being attorneys giving advice. Whose attorneys are they? If they are the wife's then you should sit down with your own probate attorney to review the situation and answer any questions you might have. Most probate attorneys wouldn't charge much for such a meeting and if they do charge it would be worth it for the peace of mind that you are getting an answer you can trust.
