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I’m Not Named in the Will– Is There Still a Way? (A Spouses Rights)

By Matt Dana

This is a very common question that I have encountered in my 38 years of practicing in the area of Probate. There are many reasons why there may be a Will that you are not named in. The most common scenario is that the decedent had a Will that he or she executed prior to marriage, and never got around to creating a new Will after the marriage. A spouse has many rights even if they are not named in the Will. This Article will help identify some of the most common rights of a spouse. There may be others. The best advice I can give you is to seek competent legal advice. And do it quickly. Your rights as a spouse will certainly have time limitations in which they will have to be brought. The following points should be addressed:

  1. There may be a new Will created after your marriage, you just aren’t aware of what the legal requirements are that constitute a valid legal Will. I have had cases where we were able to Probate a letter written to a spouse as a Will. Many States recognize what they call a “Holographic Will”. This is a perfectly valid legal instrument if the material provisions were in the handwriting of the deceased spouse and signed by that spouse. No need for a notary, or witnesses or a lawyer. A simple letter like, “honey, don’t worry, it is my wish to you leave you everything if I die”. As long as it is all in the handwriting of the decedent, and signed by the decedent, it is a perfectly valid Will.

  1. What about an “oral Will”? A conversation in front of a group of friends where your spouse says, “honey, don’t worry that I didn’t have a chance to create a Will yet, if I die on this hunting trip, I want everything to go to you”. This may be enough in some States. Obviously, you must have sufficient proof that the statement was made to you.

  1. I have also been involved in cases where there was a Will, then a Divorce that revoked the Will by law, and then a subsequent remarriage without doing a new Will. Does the new marriage “revive” the old Will? In many States it will. My main point is that you don’t just assume that there is no Will. You talk to a lawyer and give him or her all of the relevant facts you can remember about a Will in the past or about past conversations or letters.

  1. What about your “community property rights”. Many States, such as Arizona and California are “Community Property States”. In these States, even if you are not named in the Will of your deceased spouse, as a Surviving Spouse you may be entitled to one-half of all of the assets of the decedent as his or her Community Property, regardless of how the assets were actually titled and regardless of who was named under the Will to inherit such asset. In these Community Property States, there is a very strong legal presumption that everything is Community Property until proven otherwise. In other words, as the Surviving Spouse, you don’t have to prove it is Community Property, it is automatically presumed. It is up to the other beneficiaries of the Will to prove that it “isn’t Community Property”. One common example of Community Property may be that you used part of your salary from your job to pay for a mortgage on your residence that was just in the name of your spouse as his or her separate property. The fact that in Arizona, as well as other States, salary is a “community asset”, and when used to create equity in an asset that is in just the name of your spouse, you are creating a “community property interest” in that property. Also, maybe your salary was used to pay the premiums under some life insurance where someone else was named beneficiary other than you as the Surviving Spouse. This may create a “community property interest” in that life insurance. The Community Property laws of a State are quite complex and beyond the scope of this Article. Suffice it for me to emphasize once again, seek competent legal counsel and seek it quickly. In non-Community Property States a Surviving Spouse may still have some legal property rights under the old common law of “Dowery”.

  1. Even if none of the property owned by the decedent was Community Property, and regardless that the Will names other beneficiaries other than you, as a Surviving Spouse you are still entitled to certain “Spousal Allowances” spelled out by Statutes. In other words, most States find it repulsive to not provide for a Surviving Spouse in some manner. So, absent a provision in the Will, and absent any Community Property rights, most states will give you some “allowances” for support, allowance for a homestead or other spousal necessities. Once again, each State is different and the need to consult a lawyer in a timely manner is crucial.

  1. You may also be entitled to certain spousal rights to IRAs, Pension Plans and other retirement benefits even if you were not named as the beneficiary. These rights may come from State law or perhaps even under Federal law.

Hopefully this Article has given you something to think about and motivate you to seek out the advice of a competent Probate Attorney after the death of your Spouse. This is true whether or not there is a Will, and whether or not there was a Will that you weren’t named in.