Why a Will is so Important in a Second Marriage – Part 2

In my post last week I began telling you about Mary’s call.  Her husband, John passed away without a will so for the probate assets – those held by John individually with no co-owner and no beneficiary upon death – New Jersey’s intestacy laws would control.

As I explained last week, these laws determine who receives the assets.  Most people would assume that a surviving spouse would be first in line.  While that is true in many instances, unfortunately for Mary not in her case.  That’s because Mary and John’s marriage was the second for both.  Because they each had children from a first marriage, New Jersey’s intestacy laws say that John’s children are entitled to a share.

Intestacy laws are state statutes so there isn’t a uniform answer to the question of who inherits.  New Jersey has a formula in the case where there are children not born of the marriage between the decedent (the person who died) and the surviving spouse.  The surviving spouse inherits a majority of the assets but there is a significant portion which will pass to the decedent’s children from other relationships.

Mary was not happy when I explained this.  She told me that she and John owned two homes, their primary residence and a vacation home.  When I asked for copies of the deeds, I determined that while the primary home was held by “John and Mary, husband and wife”, the second home was titled only in John’s name.

Mary explained that although John had bought the property before they were married, they built and renovated the home on that property together during their 20 year marriage.  “That home was ours”, she told me, “and I’d like to keep it.”  She also told me that John had a substantial 401k.  When I asked who the beneficiary was, she said that John had told her he had designated Mary.  We would need to confirm that with the financial institution which acts as the fiduciary for the account to be sure.

So, how much was Mary entitled to and what were John’s children entitled to?  I’ll get into that next week.