Is A Surviving Spouse Fighting With Decedent’s Children From A Previous Relationship?

A spouse is entitled to receive assets pursuant to intestate succession. If Decedent and surviving spouse shared children then the surviving spouse is entitled to 100% of the assets. If the Decedent had children, but they were not children of the surviving spouse, the spouse is entitled to a portion of Decedent’s estate and Decedent’s children are entitled to a portion of the estate. In addition, the surviving spouse is entitled to a statutory homestead allowance, a family allowance and an exempt property allowance which are adjusted annually to account for the cost-of-living.

A spouse is entitled to receive funds from certain retirement accounts that participate in the federally mandated law, the Employee Retirement Income Security Act (ERISA). Under ERISA, if the owner of a retirement account is married when he or she dies, his or her spouse is automatically entitled to receive 50 percent of the money, regardless of what the beneficiary designation says. In order give their benefits away, the spouse must sign a written consent.


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