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I was met with this inquiry from a client last week: Question: My husband and I have separate wills with different provisions. It is a second marriage for both of us. We never made a prenuptial agreement. My will leaves everything to my sister. I don’t think he would, but could my husband get any of my estate?
Answer: Yes, he can if he chooses.
What is being described is an election to take against the will if the wife dies first. Any of us can disinherit anyone except our spouse. Should the wife die first, the husband may, and probably will, honor her wishes by letting her sister have the wife’s estate. But, he doesn’t have to if he doesn’t want to, and it’s sometimes hard to predict what another will do after a relative, even a spouse, dies.
Should the husband determine that he wants the share the statute gives him, he has six months from the date the will is taken to the courthouse to object.
Assuming the husband does “elect against the will,” what will the law give him?
The general answer is that he can get one-third of the wife’s assets, but that answer is subject to a lot of qualifications.
If she has a trust that she can revoke, he can get one-third of that. A house in her name, a certificate of deposit, a checking account, a car and any gifts of $3,000 or less which the wife may have made within a year of her death are all subject to the one-third rule. The only significant items of property that aren’t subject to the one-third rule are life insurance policies and pension plans.
There is a kicker. In order to get one-third of the wife’s property, the husband will have to give up his rights to other property that would ordinarily be his to keep.
There are two principal kinds of property the husband will have to give up: Any gift made to him by the wife at any time and any property that carried both names.
Suppose a wife has $100,000 in assets in her own name. She and her husband live in a house worth $20,000. Both names are on the deed to the house. If the wife dies, and the husband does not elect against the will, he gets the house (because his name is on the deed) and the sister gets the $100,000.
But if the husband elects against the will, he loses the house, which is then treated as being only the wife’s property. Of the total assets of $120,000, he elects one-third or $40,000. Sister gets $80,000.
It would be in the economic interest of the husband to make the election.
Finally, the husband can elect to keep the house and have it deducted from his share. Husband gets the house, plus $20,000. Sister gets $80,000.
People in a second marriages should have their estates checked for the potential of an “election against the will.”
Thomas Young, a graduate of Pitt and Harvard Law School, has been a lawyer in Johnstown since 1958. He is a former professor of business law at Pitt-Johnstown. Readers may send questions to Young in care of The Tribune-Democrat. The opinions expressed in this column are general in nature and may not apply to your situation. Consult your attorney for advice on specific legal matters.
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