Are you a pretermitted spouse? If so, while you might think that you don’t have rights to the inheritance of your spouse, it is not the case.
Here is a quick guide explaining everything you need to know about the legalities involved in being a pretermitted spouse.
What is a pretermitted spouse?
A pretermitted spouse is a person who has married a decedent after he or she has already created their will. As per the will, they don’t inherit any assets after the death of the testator.
Such a spouse can still legally inherit under the will in most states. In this case, the omitted spouse is given the same share of the estate that the decedents would have gotten if there was no will made by the deceased person.
But, if the omission is intentional, and it can be proved in court, the spouse is not entitled to receive anything.
How to prove that you are pretermitted and not omitted?
In most cases, it is quite easy to prove that a spouse was pretermitted and not intentionally left out of the will. The date of the creation of the will helps in deciding this. If will pre-dates the marriage, it is assumed that the spouse is pretermitted.
However, if the date of the will precedes the date of marriage, the spouse is thought to be omitted. If the will is updated after the marriage, and the spouse wasn’t added to it, he/she is considered pretermitted.
Additionally, other relatives of the deceased can dispute the claim of a pretermitted spouse by filing a petition. If this occurs, a probate lawyer must be contacted.
What does a pretermitted partner inherit?
The amount a pretermitted partner inherits from the wealth of the deceased partner depends on the state probate law. Generally, the spouse gets the amount they would have otherwise inherited in the absence of a will. It is called an ‘intestate share.’
For instance, if the couple had no children, the living spouse will inherit the entire estate. If they had two children, the spouse would receive the community state and one-third of the separate states.
Steps to get the share in the inheritance
If you are a pretermitted spouse, here are the steps you must take to get your legal inheritance.
- Seek the consultation of a litigation attorney. Each case differs, and a professional can best tell you how to proceed.
- Potential solutions include contacting the administrator of the estate or going to court for your share.
- In case you have to go to court, you will have to file a motion to determine heirship in a probate court.
- At the end of it, either a judge will decide on your claim or a settlement can be reached.
What is a motion to pretermit?
A motion to pretermit is often used when you go to a lawyer. Regardless of how equipped, you are with the world of law, it is always a good idea to know the petition that concerns you.
In legal jargon, a motion to pretermit is a petition filed to determine entitlement to the distribution of a wealth of the deceased. Here, the court is given the task to determine whether the pretermitted individual is entitled to the share or not.
The process requires the hiring of a probate lawyer for legal representation. As inheritance laws differ in every state, you will need an attorney who is well-versed with the laws that are enforced in your state.
Inheritance laws in different states have different requirements, and thus the procedure to file a motion also varies. For example, to file a motion to pretermit, probate lawyers in Dallas would have to follow a different procedure than probate lawyers in Chicago.
It is because the inheritance laws of the State of Texas have different requirements than the inheritance laws in the State of Illinois.
When should you consult a lawyer?
If you are pretermitted, consult a lawyer as soon as you can after the demise of your spouse. It ensures that that claims are filed on time and before assets are distributed among the beneficiaries
In case a claim is filed after the estate has been distributed, it will take longer to collect your inheritance. It will also cost you a lot more.
Is it necessary to get a probate lawyer?
Yes, it is necessary to get the services of an attorney, and it is highly recommended as well. It is due to the complex legal procedure involved in such cases. A probate lawyer has all the required professional expertise to represent you and fight your case effectively in the court.
Know your rights as a pretermitted spouse. This guide serves as a run-down of the basics that you must know. But, to file claims and understand your case, you will need a deeper understanding of the subject. So, if you are not aware of the legalities, consult your attorney.
Let us know if you have any more queries.
Alma Causey is a freelancer and blog writer. She writes articles related to technology and medical. A writer by day and reader by night. Her passion is to help people in all aspects of the research industry. Currently, she is associated with The Hartnett Law Firm, Find her on Twitter: @Almacausey