Q: My late father left his home to me in his will. However, the attorney for my father’s estate said my step-mother has rights to the house. How can this be possible?
A: A common mistake in estate planning is the failure to realize that a will does not control the disposition of real estate under the following circumstances:
- Right of Election. Regardless of what your father’s will stated, your step-mother has the right to file a “right of election” as surviving spouse. She is entitled to the greater of $50,000.00 or one-third of your father’s estate and any transfers he made within one year prior to death. However, she would have waived her right-of-election only if she had signed a valid prenuptial or antenuptial agreement; she had abandoned your father or failed to support him.
- Life Estate. If your father deeded the house to your step-mother and retained life use, the home automatically went to her upon his death.
- Tenants-by-the-Entirety. If the home was owned by your father and step-mother as tenants-by-the-entirety, it automatically passed to her upon his death. However, if the home was owned as tenants in common, his share of the house would go through the estate in accordance with his will or if he had no will, to his surviving heirs.
- Living Trust. If the real estate was owned in the name of a living trust, it would be disposed of pursuant to the trust agreement.
Contact an attorney to review the facts and advise you of your rights.