Question: Can I legally stop my stepmother from taking anything that belonged to my deceased mom and dad? My brothers and I don’t feel that our stepmother should be entitled to anything that belonged to our father and deceased mother before he remarried. We would like to know what the law says, please.
Loraine’s Answer: It’s not likely that you would be able to legally prevent your stepmother from receiving assets that belonged to your mother and father. If your father’s principal residence was in Georgia, if he received assets from your mother outright and not in any kind of trust, and if he and your stepmother were legally married when he died, then she, along with you and your siblings, are all among his heirs. “Heirs” are the people who would receive a share of a deceased person’s probate estate assets if the person died without a valid Will. A surviving spouse in Georgia gets a minimum of 1/3 of the decedent’s net probate estate; the other 2/3 benefits the children. This means that she’s entitled to at least something, even if there is no Will.
If your father designated your stepmother as a beneficiary under a life insurance policy, an IRA or other tax-deferred retirement savings account, or under any Payable on Death or Transfer on Death designation, she will receive those assets. If he owned assets jointly with her with rights of survivorship, such as a joint account or real estate, she will receive those assets. If your father made a Will and left his assets to your stepmother, then she should get whatever was left to her in the Will from his probate estate.
Finally, as a surviving spouse, she is entitled in Georgia to try and take up to the entire estate, if she wants to, under the “year’s support” statutes. The year’s support petition process can give her assets in addition to assets she received under a Will, beneficiary designation, or right of survivorship, and it can also override a Will or override state intestacy laws and result in her getting more than she otherwise would have received.
It is potentially possible to challenge a Will, and even to challenge beneficiary designations and rights of survivorship. But it would likely be difficult for you and your siblings to be able to challenge anything your father did to benefit his spouse. You might need to be able to prove fraud or undue influence, for example.
I tell my clients all the time: If you leave assets outright to your spouse, you risk having your spouse survive you, remarry, and leave your assets to the new spouse instead of to your kids. If your mother’s assets passed to your father outright, they became his assets. If he wanted to leave them to your stepmother, either on purpose or because he just failed to plan, that was up to him.
If you think that you may be entitled to a share of your father’s probate estate under intestacy law or because you were a beneficiary under his Will, then you should take steps to protect yourself and your interest. And if you think you really want to try to challenge your stepmother’s entitlement to a share of your father’s assets, you can talk to an estate litigator and see if you have any case. But in general, you’ll likely face an uphill battle, and you likely won’t be able to prevent your stepmother from getting any portion of your father’s assets, even if those did come from your late mother.
Key Estate Planning Takeaway: In blended family situations, surviving children may face an uphill battle in preventing a surviving stepparent from receiving assets. Unless estate planning documents say otherwise, the surviving spouse is considered an heir to the marital assets, even if they originated from a former spouse.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
