Legal Question in Wills and Trusts in Oklahoma

Re: Death of spouse.

Because of constraints on the size of the message that can be handled by the text editor on this web site, I will send this response to you in two parts.

FIRST PART

You really need to have more information. Your situation involves complex interactions between the law and different factual circumstances.

Based on your what your said in your posting, I'm assuming these facts: that your father and stepmother did not have any children together and that they each had children by a previous marriage. If they had any children together, that will put another wrinkle in the situation.

The following, may give you some idea of what additional facts are most important.

1. You need to know exactly how the house was owned at the time of the stepmother's death. There are a number of possibilities:

a. Stepmother owned it entirely in her own name; or

b. Father owned it entirely in his separate name; or

c. Both of them owned the house together as tenants in common; or

d. They owned the house together with rights of survivorship (that is, in joint tenancy).

2. If it was owned in the manner last mentioned, that is, in joint tenancy with rights of survivorship, your father automatically became the sole owner upon the death of the stepmother, and only his heirs stand to inherit from him. Stepchildren are not heirs at law.

3. An antenuptial (or premarital) agreement could affect your father's right to inherit from your deceased stepmother. Since you did not mention such an agreement, the rest of these remarks will be based on the assumption that there was none, so that the general rules of inheritance will apply.

4. Further, the surviving spouse's intestate (no will) share will depend on whether the house was separate property of the decedent (that is, it is fully traceable to property that she had before they were married) or was marital property (that is, it was acquired during marriage by the joint efforts of the married couple). Your father's intestate share of marital property would be one half, as I recall offhand, if her death occurred in the past few years, since the last change of the applicable statute.

5. If the house was owned entirely by your stepmother, there is a good chance that it was her separtate property, which will make your father's share depend on how many children your stepmother had.

Re: Death of spouse.

SECOND PART

6. If your father owned the entire property or a partial interest as a tenant in common (that is, he was a co-owner with your stepmother without rights of survivorship), then he will still own his original part plus he will have inherited a portion of any interest she may have had in the house.

7. Even if the house was separate property of the decedent, provided it was the homestead of the couple at the time of her death, your father has the right to occupy the same as his home so long as he lives and does not abandon it. Note that this right could be lost by abandonment, were he to move out without a demonstrable intention of returning, and once lost cannot be revived. This right is exclusive, so that, even if her children inherited all or part of the ownership of the house at her death, he has the sole right to continue living there. This right is called a "probate homestead," and it is not an estate and therefore cannot be transferred by inheritance or will or lifetime conveyance.

8. All of the foregoing could be changed if the house was held in a so-called living trust, the terms of which would probably govern who was to have the benefit of the property and how it was to be used and who was to receive title to the property upon termination of the trust.

When a person dies owning property in Oklahoma, there are other parties interested in the estate besides the heirs or beneficiaries under a will, for example, the Estate Tax Division of the Oklahoma Tax Commission, which by law is given an automatic lien on all property for any possible estate tax liabilities, as well as any possible creditors of the decedent, who may have claims against the estate.

The foregoing comments should be enough to get you started in gathering the necessary facts.

As is almost always the case, there may be time requirements or statutes of limitation for taking action.

You should arrange to have an Oklahoma lawyer look into this matter and advise you what, if any, action ought to be taken on the basis of all pertinent facts.

Without further information, I cannot be any more specific than I have been in this message.

You must let me know if you expect me to be of any further assistance; otherwise, this message will constitute my sole involvement in this matter.

Thank you for an interesting question.

THE END