28 Sep Will mom’s 4th husband get her assets when she dies?

Q. This might be a little twisted so bear with me. I have five siblings from my mother. She has had her children with her three past husbands and other “friends” and she is now married for the fourth time. The new guy is not the father of any of us. When she dies, what can we do to make sure he doesn’t get her house and small savings?
— Unsure

A. Thanks for your question.

Your mother is free to leave her house and savings to whomever she chooses by preparing a will setting forth her intentions.

Absent a will, or a beneficiary named on the savings account, or joint owner with rights of survivorship on the savings account and/or home, her property will pass by the laws of intestacy, said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park.

“In intestacy, if there are a surviving spouse and children of a previous relationship, the surviving spouse is entitled to the first 25% of the intestate estate but not less than $50,000 or more than $200,000, plus one half the balance of the intestate estate,” Romania said. “All of your mother’s children would share the balance.”

The first step is to talk to your mother, she said.

There’s something else to consider.

Even where a deceased spouse disinherits the surviving spouse and leaves everything to his/her adult children, it is possible that a surviving spouse may claim what’s called an elective share, unless there was a premarital agreement where the elective share is waived, she said.

“The elective share is intended to ensure a surviving spouse does not become a burden to the state due to being disinherited,” she said. “In essence, it provides that the surviving spouse may elect to maintain at least one third of the decedent’s `augmented estate’ which is first satisfied by considering the surviving spouse’s own assets and anything inherited from the deceased spouse.”

Therefore, Romania said, assuming the surviving spouse has sufficient assets in his or her own name, a claim for the elective share will not be successful.

Additionally, she said, the elective share may not be claimed if the parties had filed for divorce or were living separate and apart under facts giving rise for a cause of action for divorce.

Email your questions to .

This story was originally published on Sept. 28, 2023.

NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.