Legal Question in Wills and Trusts in North Carolina

I am sorry for your unexpected loss of your mother.

It does not matter how long your mother was married to her second husband - it could have been 5 minutes or 5 years and he has the same rights.

The intestacy law provides that the spouse gets certain rights and splits the assets with you and your mother's other children. However, there is a family exemption (sometimes called a spousal share in some states) whereby your mother's husband gets an extra $3500.

The question I have though is what assets are in the probate estate? The intestacy laws only cover probate assets. If your mother and her husband owned land, for example, as husband and wife (called a tenancy by the entireties) then the land would pass to him automatically. If they had a joint checking account, same thing. Did your mother have life insurance? If so, who was the beneficiary? If she took out a policy and made you and your siblings the beneficiaries, this too is a non-probate asset and would go to you, not your mother's husband. If the husband was the beneficiary, then it would go to him.

Also, did your mother and her husband have any type of pre- or post nuptual agreement? Many people today have blended families and second marriages and it is not uncommon for each party to want to benefit his or her children from the prior marriage/relationship. This may have a bearing on state intestacy laws and what the spousal share will be. If there was an agreement here, then your mother's husband may have waived his rights.

You do not indicate where your mother resided at the time of her death or when she passed. I suggest that you seek out a probate attorney in the county/state where your mother resided to confirm what I have indicated if there are probate assets. If your mother resided in PA prior to her death, here are some helpful PA statutes:

20 Pa.C.S.A. � 2102 - Share of surviving spouse

The intestate share of a decedent's surviving spouse is:

(1) If there is no surviving issue or parent of the decedent, the entire intestate estate.

(2) If there is no surviving issue of the decedent but he is survived by a parent or parents, the first $30,000 plus one-half of the balance of the intestate estate. Notwithstanding the foregoing, in the case of a decedent who died as a result of the terrorist attacks of September 11, 2001, a surviving spouse shall be entitled to 100% of any compensation award paid pursuant to the Air Transportation Safety and System Stabilization Act (Public Law 107-42, 115 Stat. 230). [FN1]

(3) If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, the first $30,000 plus one-half of the balance of the intestate estate.

(4) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, one-half of the intestate estate.

(5) In case of partial intestacy any property received by the surviving spouse under the will shall satisfy pro tanto the $30,000 allowance under paragraphs (2) and (3).

20 Pa.C.S.A. � 3121 - Family Exemption

The spouse of any decedent dying domiciled in the Commonwealth, and if there be no spouse, or if he has forfeited his rights, then such children as are members of the same household as the decedent, and in the event there are no such children, then the parent or parents of the decedent who are members of the same household as the decedent, may retain or claim as an exemption either real or personal property, or both, not theretofore sold by the personal representative, to the value of $3,500: Provided, That property specifically devised or bequeathed by the decedent, or otherwise specifically disposed of by him, may not be so retained or claimed if other assets are available for the exemption. The surviving husband or wife shall be a competent witness as to all matters pertinent to the issue of forfeiture of the right to exemption.