A Widow's Rights Over the Deceased Spouse's Estate

By Andrine Redsteer

Widows, or surviving spouses, have certain rights concerning the management of a deceased spouse's estate. A widow may be the first choice as personal representative, unless her deceased spouse named someone else as executor in his will. Because probate courts place importance on honoring a testator's last wishes, a named executor in a will has priority over a surviving spouse.

Personal Representative Priority

If a decedent fails to make a will -- and by extension, fails to name an executor -- many states consider a surviving spouse to be first in line when it comes to administering a deceased spouse's estate. Although other family members may petition a probate court for appointment as personal representative, the surviving spouse has priority. In other words, if the surviving spouse wishes to take on the role of estate administrator, all other family members' petitions take a back seat. This is because a surviving spouse usually has more knowledge of the deceased spouse's assets. Moreover, the law recognizes surviving spouses as having greater authority over the distribution of the marital estate.

Homestead Exemption

Some states, such as Florida, allow for a homestead exemption. This means that the deceased person's primary residence -- usually shared with the surviving spouse -- is exempt from certain probate restrictions. For example, homestead property may be exempt from going through the entire probate process, as waiting for transfer of the primary residence may create a hardship for surviving spouses and children who also reside in the homestead property.

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Interim Distributions

A widow generally has a greater right over her deceased husband's estate in that she may be entitled to interim distributions of estate assets, particularly if there are children involved. For example, other heirs may have to wait until the end of the probate process before they may receive a distribution of inheritance. However, in the case of a widow, she may be entitled to interim distributions as the loss of a spouse may create financial hardship.

Non-Probate Property

In community property states, a widow may be entitled to her automatic share of all community property without it going through probate. This means she will not have to wait to receive her share of the community property assets because these assets bypass probate. Because community property assets are considered the property of both spouses, a widow may automatically inherit all marital assets unless her deceased spouse devised his 50 percent share of the community property to someone other than his surviving spouse.

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Wills & Probate in North Carolina


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