In the vast majority of cases, when someone passes away, their spouse becomes the legal heir to their entire estate. There are, however, exceptions to this rule. In some cases, a spouse may even have to fight to get the property to which they should rightly be entitled. There are a number of probate laws surrounding these issues, and they can get quite complex.
A little bit of knowledge goes a long way. Knowing your legal rights can prepare you for what you may have to face as well as the steps you may have to take, to protect yourself during the probate process. Learn about the legal rights of surviving spouses in dealing with the estate of a deceased loved one, and how a Montana probate lawyer can help.
Communal vs. Marital Property
The first question the courts will look at is whether the property is communal. Montana does not recognize community property, which means that everything in a marriage is not jointly owned in this state. The state does, however, recognize marital property, which is acquired after the couple’s union. This can create some complications in dividing the estate.
Dealing with Property Ownership
In Montana, if there are no other surviving heirs, the spouse is generally entitled to 100% of the estate when no specific will is left behind. If the spouse is one of several heirs, they will be entitled to a set amount of money, with a percentage of the estate awarded after that and the remainder allocated to other descendants, such as the deceased’s parents and children from prior marriages.
This portion of the estate to which the spouse is directly entitled is called an elective share. It means that a spouse cannot be completely disinherited. This is to protect the legal rights of surviving spouses in cases where, for example, the other surviving family hold a grudge against the spouse. Elective share applies to any assets in the estate, unless there is a separate written agreement that states otherwise.
Some people leave behind assets that are not technically a part of the family estate. These can include insurance policies, designated beneficiaries on bank or investment accounts, businesses and the like. These are called non-probate assets and, in such cases a surviving spouse has no claim to the assets in question. There can be exceptions to these rules, and the issues can get complicated, as in a business where the decedent was one of two partners.
Hiring a Montana Probate Lawyer
Any time you’re dealing with closing an estate, no matter how solid the estate plan seems, your best bet is always to work with a qualified and experienced Montana probate lawyer. A probate attorney can guide you through the complexities of estate management and closing, and can protect the legal rights of surviving spouses throughout the entire process.
For many years, the probate attorneys at Tanko Law have helped people deal with the difficult and stressful process of handling estate closings. We are here to ensure that the estate is equitably distributed, and that you are protected every step of the way. Give us a call to discuss your needs today!