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The Moneyist: My mother’s will leaves everything to her 3 children. My brother died suddenly — and his wife says she will receive her late husband’s share

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Dear Quentin,

My father died in 2018 and everything passed to my mother per their wills that were made in 2015. My sister, brother and I were next to inherit what’s left, equally. No one’s spouse was mentioned in the will. My mother is still alive, but she is not in the best of health mentally or physically. I currently care for her full-time. 

My brother died intestate earlier this year. His wife insists she will automatically get my brother’s share of our parents’ estate. My sister and I say no way. Like I said, our spouses are not mentioned in her will and she was not a popular member of our family. We all live and have always lived in New Jersey. Your thoughts?

Miss My, But Not His Wife

Dear Missing,

It’s an unfortunate conversation to have after the sudden passing of your brother, especially under such sad circumstances. When people are grieving, they can act in ways that are uncharacteristic or even more reminiscent of their worst side. A death in the family can bring up old grievances, and financial fear and insecurity about the future.

Whether or not your brother dies intestate has no bearing on your parents’ will whatsoever. They are two completely separate issues. Under intestacy law in New Jersey, if your brother dies without a will and he shares children with his spouse, she receives everything. If your brother had a child from a separate relationship, the inheritance laws vary. 

As for the legal part of your question, I asked Allison Busch, partner at Hartmann Doherty, Rosa, Berman & Bulbulia, to weigh in. If your mother’s will leaves everything to her three children, “per stirpes” — equally among the branches of your family — or “to issue, per stirpes,” given that your brother predeceased her, his share is distributed to his children, if he has any.

“If he does not have children, then his share is divided among the surviving children of mom and dad,” Busch said. But your brother’s death may raise another key question among the family, and your sister-in-law may raise this issue with your mother. “If mom has capacity, then she can of course modify her plan and leave her deceased son’s share to his spouse,” Busch adds.

So what should you do now? I don’t believe you should get involved in this situation. It’s between your mother and your daughter-in-law or — as Busch said — between your daughter-in-law and the intestacy laws of New Jersey, in the event your late brother had children with his wife. It’s also one example of how people should update their wills. 

Check out the Moneyist private Facebook group, where we look for answers to life’s thorniest money issues. Readers write in to me with all sorts of dilemmas. Post your questions, tell me what you want to know more about, or weigh in on the latest Moneyist columns.

The Moneyist regrets he cannot reply to questions individually.

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