“My big brother died of COVID-19 and he didn’t have a will. He divorced 20 years ago and has no children, but his ex is telling me she should get an inheritance. Who has the right to his money?”
Nj.com’s recent article entitled “My brother died of COVID-19. Should his ex-wife get an inheritance?” says that it’s unlikely that an ex-wife is entitled to any of her former husband’s assets.
There are three main ways property can transfer at death. They each have different rules.
Joint assets. When property is held as Joint Tenants with Rights of Survivorship (JTWROS), the surviving joint owner (if there are two owners) automatically becomes the sole owner of the property. Usually, jointly owned property is retitled into individually owned property after the divorce. If this was never done, some states (such as New Jersey) automatically change JTWROS property to a different form of joint ownership, called tenancy in common when a divorce is finalized. As a result, with tenants in common property, when one owner dies, his or her 50% ownership interest becomes a probate asset and passes pursuant to his or her will (or the state’s intestacy laws, if they didn’t have a will).
This means that even if the husband in this scenario still owned JTWROS property with his ex-wife when he passed away, she wouldn’t automatically inherit his share. She still has her own 50% share that she owned all along.
Property can also pass by beneficiary designation, like with life insurance or retirement accounts.
Beneficiary designations are typically updated after a divorce. However, again, ask an experienced estate planning attorney about your state laws. For example, New Jersey law revokes a divorced spouse as beneficiary, even if the beneficiary designation was never updated.
In this situation, even the husband named his wife as a beneficiary on an insurance policy or retirement accounts and never changed it, she wouldn’t be able to collect.
Finally, the third way that property can pass, is through the probate process. This means there’s a will. If there was no will, it would be pursuant to the state’s intestacy laws.
An ex-spouse is never entitled to inherit property under state intestate statutes.
There are two important caveats for these rules. One is that they can be superseded by a divorce decree. Therefore, review the divorce decree to see whether it has any relevant language. The rules also apply to ownership, beneficiary designations or wills that arose during the marriage. Anything that happened after the marriage would not be affected by the divorce.
Contact our office today to schedule your consultation and make sure you know what will happen with your assets.
Reference: nj.com (Aug. 4, 2020) “My brother died of COVID-19. Should his ex-wife get an inheritance?”
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