Estate Law Questions? Ask an Estate Lawyer.
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Yes, the surviving spouse has a statutory right to elect to take against the will. The spouse receives 1/2 of what the spouse would have received had there not been a will. In this case, since there are children that are the step-children of the surviving spouse, the surviving spouse is entitled to 1/2 of the first $136,000 of the estate and then the rest is divided into equal shares for the children and the spouse, with the spouse being able to take 1/2 of whatever share the spouse would have received. The children will take the remainder according to the terms of the will. Alternative, the spouse could elect a 1/3 life estate to all of the estate.
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should I use a different lawyer
There's really no way for me to say. I don't know what he has or hasn't done. Has he done anything that makes you wonder about his ability to properly or ethically handle the matter?
it seems to me he is more for the husband than the kids
What makes you feel that he is not adequately representing the interests of the children?
in the estate agreement it looks like more is going toward the husband
It might be depending on the value of the property. As noted, the spouse can elect to take 1/2 of the first $136,000. If the estate is smaller or not much larger than $136,000, then the surviving spouse would get a larger share by law than any one of the children would receive. The spouse also gets a portion of the remaining estate after 1/3 of the first $136,000. Before you go to another attorney, which would cause added expense and delay, it would probably be a good idea to closely review the valuation of property and how the attorney has determined what goes to the spouse based on the forced election statutes. Have a sit down with the attorney to see if you feel comfortable after closely examining the matter. If you do not, it's best to find another attorney since your comfort level with the attorney is of prime importance.
ok thank you for your time
You're very welcome. Have a great day!
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