Legal Question in Wills and Trusts in New York

If your mather and father were never divorced, then the second marriage would have been illegal. Thus, the "current" wife may not be a spouse. I suggest that your mother and you retain the services of an attorney to protect your interests.

If I correctly understand your question, the Mexican divorce was never formalized. If that is so, it seems to me that your parents remained married to one another through the date of your father's death. If that is the case, then your mother is your father's widow and thus is entitled to at least one third of the estate pursuant to New York's spousal right of election, regardless of what is stated in the will.

You don't provide enough information in order for me to determine the applicability and extent of any Medicaid lien.

You also don't indicate the basis of your challenge by your father's "wife" to the will.

By the way, even if she succeeded in knocking out the will (assuming she were found to have standing to challenge it), it seems to me that your mother, you, and your brother would thus be the beneficiaries of the will.

You need to discuss all of the pertinent issues in detail with an attorney. If you would like, you may feel free to contact me at http://www.Haberlawoffices.com or at (212) 791-6240.

Good luck to you.

While this is complicated, there are some things you should consider. (1) If the mexican divorce was not finalized, your mother has a good claim, as she cannot be disinherited. Her claim would be one-third of the estate. However, Medicaid may be entitled to the money, as funds they pay are essentially a loan that is to be repaid if there are funds belonging to the recipient. (2) Depending on when she started receiving medicaid benefits, in relation to your father's death, Medicaid may even have a larger claim as they can go after the community spouse for contribution. If Mom was getting benefits before Dad passed, more than one-third may be at stake. (3) If it is determined the Mexican divorce was legal, medicaid may have no claim if benefits started after thye divorce. (4) If the divorce was legal, the new wife probably has a claim as she cannot be disinherited. Many facts need to be explored, financial decisions need to be made, especially by the children who seem to have the most to lose.