Death, Divorce & Inheritance Rights: What are you entitled to?

The demise of Elizabeth Edwards in 2011 inspired this post about divorce and inheritance rights. The question presented is what are surviving spouses like John Edwards’ rights, if any, to the estate of their deceased spouse?

Death, divorce & inheritance rights: What are you entitled to?

The rule may vary state to state, but in New York, as a general rule, the surviving spouse has no right to a share of his or her deceased spouse’s estate if a judgment of divorce had already been signed by a judge at the time of the death of the decedent spouse. However, a spouse who is separated might, depending on what was agreed to in the separation agreement.

Where does that leave a guy like John Edwards? Well, he’s in North Carolina and the laws of North Carolina with regard to inheritance rights may be different from New York. If they are not, then John Edwards may inherit about $50,000 plus 1/2 of the remainder of Elizabeth’s estate and her children will receive the other 50%. This assumes she died intestate, i.e., without a will. If she has a will and she disinherited him, he can get what is called a forced share of her estate (about one third) because, a spouse cannot disinherit a spouse and remember: John and Elizabeth are still spouses. At the time of death, there was no judgmeent of divorce! That would or could mean that even the proceeds from Elizabeth’s book, Resilience, could end up, at least in part, in John Edwards’ pockets and could end up helping support Rielle Hunter and her child Quinn. Which is hugely ironic, isn’t it?

If there were no separation agreement but only a divorce that has been commenced but not yet adjudicated, with or without a will, John Edwards would have absolutely received a portion of Elizabeth’s estate and would have had first dibs on being the administrator of her estate. Lawyers may be able to fight this, though, with an argument that says something to the effect that the filed divorce action shows the intent of the parties not to be spouses and so therefore, the surviving spouse should not get a share (especially if the will disinherits said spouse). That would be open to a judge’s interpretation and discretion.

Had the divorce already by finalized at the time of her death, unless she expressly made him an heir, John, or a similarly situated spouse, would not have been entitled to diddly squat from the decedent spouse’s estate because divorce automatically cuts off all rights of inheritance of a former spouse.