Ex wife of dead spouse now petitions court to have separation signature waived - HELP

[woodahs]

What is the name of your state? Virginia

There has been a problem in my family for the last few months over someone's will. My uncle (who passed away March 31, 2004) married a woman in Nov. 2002.

To make the story short she left him in January 2004 and SHE went to HER lawyer 1 week or 2 later to draw up separation papers. The papers stated that neither will be responsible will the others debts if one would go to the nursing home etc. and also if one died that they could not get any part of what they had. Both signed and the lawyer said that the divorce will become finalized 6 months after the signing. The divorce should have become finalized in July or August, but since he died I don't guess the divorce ever became final.

Well, on March 31, 2004 my uncle died. Well now the woman is petitioning the court to have her signature waived from the separation papers (basically so that she can get what he had). I don't know when she did this because I just found out a week ago.

So basically who will win this?

I don't think she should since she herself went to her lawyer 1st and had papers drawn up and then she signed. Now MONTHS later after he has died she wants her signature waived.

This is just additional info, but my late-uncle's lawyer did say that she wasn't sure whether the papers would stand up in the state of Virginia...but I don't see why not since they are the Separation Papers and a lawyer drew them up...

Any thoughts?

[I AM ALWAYS LIABLE]

My response:

Every State attempts to preserve a marriage; e.g., that's why all the States have varying waiting periods before divorces are finalized. It's to give couples a chance to reconcile.

Since Uncle died before the waiting period was up, and before the divorce was finalized, the presumption, under law, will be that the marriage had a "chance" to be preserved. That means there's no way for the court to know whether the divorce would have ever been finalized.

This all boils down to the fact that they were still married at the time of his death, and she will win her motion. That means she's going to get the single-wide trailer.

IAAL

[woodahs]

Thanks for your response. So if I'm correct, she will get 50% plus a child's part of what he had?

To give additional info, my uncle had 4 children with his 1st wife before he married her, and she had 1 child with her 2nd husband before she married my uncle.

Also, since they were not divorced at the time of his death, and the divorce never became finalized, does her child get a child's part of what he had?

And when she dies, can my uncle's 4 children get a part of what she had?