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Friday, February 28, 2014

If the will says my husband receives his inheritance "to do with as he sees fit", does he have to share with me?

If your spouse inherited a substantial sum of money from his or her parents, would you expect your spouse to share that with you? You might be surprised. A reader recently wrote to me to discuss what happened after her husband's mother passed away. Her question and my answer are below:

"My mother-in-law passed away with a will. My husband is the executor and I’m the alternate executor. The will gives her daughter and her daughter’s son a very small share of the estate; the deceased did not get along with her daughter. The will gives the rest of the estate to my husband "for him to use as he sees fit". A few months after my mother-in-law's death, my husband of 30 years decided to separate from me, and he will not give me a share of the inheritance. I was close with my mother-in-law and helped her many times. I believe she would want me to have something under her will. Can I contest this?" 

There is very little here to suggest to me that a challenge to the will would be possible. When someone is left a gift to do with as he sees fit, he can share it out as he likes, or keep it all to himself. He has full discretion to decide what to do with the money.

There is little point speculating as to what the deceased "really meant" unless there is a challenge based on undue influence or lack of mental capacity. Neither of those things are supported by what you've said. The fact is, the deceased put her instructions in writing, and those instructions said that he can do what he likes with the inheritance. If she wanted to leave you something directly, she could have done so. As you were married at the time your mother-in-law died, it makes sense to think that she might have expected her son to share his inheritance with you, but she did not instruct him to do that.

It's also worthwhile to look at what would happen if by some chance you were successful in contesting the will. Without a valid will in place, the estate would be distributed according to local intestacy laws. This would leave out the grandson entirely. It would then give the rest of the estate equally to your ex-husband and his sister. According to what you've said, the deceased didn't want her daughter to receive a large part of her estate. This arrangement seems even further away from what the deceased wanted.

If the estate were to be distributed on intestacy, you would not receive any part of it. A daughter-in-law has no automatic right to claim a part of the estate. The fact that you helped your mother-in-law, even if  your help was extensive, does not automatically entitle you to a share of her estate either.

As a general rule, when spouses separate or divorce, they cannot claim money that was inherited by the other spouse, so I don't think you will have success there either. However, that is something you may wish to take up with a family law lawyer.

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