When a married person dies with a will, the surviving spouse may take against the will and is entitled to one-half (1/2) of the net personal and real estate of the deceased spouse. However, if the surviving spouse is a second, or subsequent spouse, who did not have children with the decedent, and the decedent left children from a prior relationship, the surviving second spouse may elect to take one-third (1/3) of the net personal property plus 25 % of the equity value of any real estate.

To take against the will, a surviving spouse must file an election with the Court not later than three (3) months after the date of the order admitting the will to probate. When a surviving spouse is not the sole beneficiary of the decedent’s will, they should consult an attorney immediately. Failure to file a timely election to take against the will can result in forfeiting their legal rights of inheritance.

The right to take against the will can be waived through a prenuptial agreement. However, there must be a full disclosure of all assets and the nature and extent of the legal rights granted under the probate code, for such a waiver to be valid. Couples who desire to maintain individual ownership of certain assets should contact Brett Gibson for a free initial consultation to discuss planning opportunities.