Re-married after Will

[Tooga]

Florida - My mother and step-father lived together for four years, and were married in 1987. At that time, my step-father had a will drawn up that split his estate in three parts (my mom and step-siblings). In 1999 they divorced and he had another will splitting his estate between his two children. Later in 1999 my step-father was diagnosed with cancer, had surgery, and almost died. Afterword my mother was the single care provider for him.

In 2001 they re-married, and my step-father came to live in the house my mom purchased in 1999 afer the divorce. In late September my step-father had surgery and found that the cancer had resurfaced. He never recovered, and passed in November. His will was supposedly filed in probate in November 2001.

If possible, could you verify or make suggestions on the following:

1. It is to my understanding that in the state of FL you cannot disinherit a spouse, therefore the second will is null and void, and my mother is entitled to at least 1/3 of the estate (per the state of FL).

2. As a retiree of the city, my step-father received a pension, to which my mother has been told she is not entitled because they had not been remarried a full year prior to his death.

3. My step-father had two savings accounts which his son was listed on. I'm under the impression that his son is fully entitled to those accounts.

4. In 1999, after the divorce, my step-father "deeded" the house they built together to his children. The deed did not get filed until two weeks after he passed. I'm under the impression that the house is no longer considered a part of his estate, therefore my mother is not entitled to a portion of the home (speaking in terms of montary entitlements, not the kitchen or master bath).

5. After asking my mom when she would be removing her belongings from the house so she could move in, my step-sister conveniently changed the locks on the house, and my mother cannot access her belongings. (This is not the house my mother and step-father were residing in at the time of his death.) My mother's attorney advised her she could take everything out of the house, and was told "I don't think so" by my step-sister.

Is all of this legal? I thought that when a will was in probate the judge would determine these things, not my mother or his children. There are also two boats involved, of which my step-brother has the titles. From what I've been told, all he has to do is provide a copy of the will and death certificate, and they will be signed over to him.

Thanks for any suggestions you may have.

 

[ALawyer]

My first obesrvation is that the children of the deceased are heartless do not appreciate the grief your mother is going through. While they too may be mourning, they are being cruel.

She does have rights of election against the estate, but what those exact rights are, and what that estate consists of, are matters that I don't have the local knowledge to opine on. It likely depends on exactly how the title to the boats and real estate and accounts was held -- and having "his name listed on" can have MANY different consequences (joint tenancy, tnants in common, etc.) . Also, because of their remarriage, things may work a bit differently than if it was a brand new marriage. And I don't know FL law on the effect of an unrecorded deed, or if an argument could be made that it was rescinded by the marriage and thus your mother has rights to it.

You mother really needs to speak with a lawyer in her state who knows probate and ERISA/State-city government benefits with respect to the pension. And who knows, if the divorce was invalid -- or deemed not to apply in light of the remarriage -- theirs would have been a continuous 14 year marraige. Get her to a lawyer, as it will be worth the cost many times over, even if it causes the kids to stop and think and have something to fear by mistreating her.