Q. I am 66 years old and my husband is 80. We are both in our second marriage and my husband does not want to write a will. He assumes that if he dies before me, I will get the house etc. We bought the house together; it was not a part of a previous marriage. He has grown-up children from his first wife and I would like to know if they have a claim on the house if there is no will. I hope you can help me.
A. If your husband dies without a will, he will die, as the law calls it, intestate. As a result, each state and territory has its own laws as to what happens to his estate when he dies without a will.
There is no guarantee under these laws that you would receive the house but if that is your husband’s wish, he would be strongly advised to do a will. Your stepchildren would also more than likely be entitled to a share of his estate if he dies without a will under the relevant intestacy laws. Even without a will, an eligible person, such as yourself or the stepchildren, would be entitled to challenge his intestate estate to change the effect of the intestacy laws.
Q. I divorced my husband five years ago but am now back living in his house (though we are not in a relationship). He hasn’t changed his will in 30 years and I am named as a benefactor, along with our two children. Does this still stand even though we are divorced?
A. When you divorced your husband, any gift to you in his will was revoked. By moving back in with him, while you haven’t provided enough information, it is possible that you could become his de-facto spouse which would then give you certain rights to challenge his will when he dies. Clearly, if he wanted to provide for you in his will, he would now have to make a new will for that purpose.
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