My mother’s will leaves everything to her 3 children. My brother died suddenly — and his wife says she will receive her late husband’s share

Dear Quentin,

My father died in 2018 and everything went to my mother by her will which was made in 2015. My sister, brother and I were the next to inherit what is left, equally. No one’s spouse was mentioned in the will. My mother is still alive, but she is not in the best mental or physical health. I currently take care of her full time.

My brother died intestate earlier this year. His wife insists that she will automatically receive my brother’s share of our parents’ inheritance. My sister and I say no. As I said, our spouses are not mentioned in her will and she was not a popular member of our family. We all live and have always lived in New Jersey. Your thoughts?

My missus, but not his wife

missing dear,

It’s an unfortunate conversation to have after your brother’s sudden passing, especially under such sad circumstances. When people are grieving, they may act in ways that are uncharacteristic or that remind them even more of their worst side. A death in the family can lead to old grievances, financial fear and uncertainty about the future.

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Whether your brother dies intestate or not has nothing to do with your parents’ will. They are two completely separate issues. Under New Jersey intestacy law, if your sibling dies intestate and shares children with her spouse, she gets everything. If your sibling had a child from a separate relationship, inheritance laws vary.

Regarding the legal part of your question, I asked Allison Busch, a partner at Hartmann Doherty, Rosa, Berman and Bulbulia, to weigh in. If your mother’s will leaves everything to her three sons, “per stirpes” – equally between the branches of her family – or “to issue, per stirpes”, since her brother died before her, her share is distributed to your children, if you have them.

“If you don’t have children, then your share is divided between the surviving children of mother and father,” Busch said. But the death of your brother may raise another key issue in the family, and your sister-in-law may raise this issue with your mother. “If the mother has capacity, then she can amend her plan and leave her deceased child’s share to her spouse,” Busch adds.

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so what should do you do now I don’t think you should get involved in this situation. It’s between your mother and your daughter-in-law or, as Busch said, between your daughter-in-law and the New Jersey intestacy laws, in case your deceased brother had children with his wife. It is also an example of how people should update their wills.

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