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Ray
Ray, Lawyer
Category: Legal
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Experience:  30 years in civil, probate, real estate, elder law
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My mother has been living with my step-father since 5/1983.

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My mother has been living with my step-father since 5/1983. They were never legally married. My dad has battled with prostate cancer for many years which has now metastasized throughout his body. As difficult as it is to write my step-father is not getting any better and to make matters worse he is also batteling dementia. There are biological children, who rarely come around and forget about helping! My thoughts are what will happen to the home my mother shared with my step-father for all theses years? It is not much, however, it is a roof over her head and a place memories were built. The home is only in my fathers name.

RayAnswers :

Hi and welcome to JA. I am Ray a licensed lawyer and will be assisting you today.

RayAnswers :

My sympathy here for your situation and dilemma.

RayAnswers :

Here if the house is in husband's name it passes either under his will or if no will by the PA laws of intestacy.

RayAnswers :

Here are the laws of intestacy.

RayAnswers :

































If you die with:here’s what happens:


  • children but no spouse




  • children inherit everything




  • spouse but no descendants or parents




  • spouse inherits everything




  • spouse and descendants from you and that spouse




  • spouse inherits the first $30,000 of your intestate property, plus 1/2 of the balance

  • your descendants inherit everything else




  • spouse and descendants from you and someone other than that spouse




  • spouse inherits 1/2 of your intestate property

  • descendants inherit everything else




  • spouse and parents




  • spouse inherits the first $30,000 of your intestate property, plus 1/2 of the balance

  • parents inherit remaining intestate property




  • parents but no spouse or descendants




  • parents inherit everything




  • siblings but no spouse, descendants, or parents




  • siblings inherit everything


RayAnswers :

Unfortunately unless he wills i to her then the kids would inherit everything.He could still marry her at this point and she would then inherit a spousal share.

RayAnswers :

You are correct to be worried about this situation.Your mother is at risk of not inheriting unless they marry here or he has willed her his house.

RayAnswers :

I wish I had better news for you but as you can see under the law she is very much at risk.

RayAnswers :

Actually sh might have common law claim here.

RayAnswers :

In Pennsylvania, common law marriages that were created before January 1, 2005 are recognized. If you met Pennsylvania's criteria for common law marriage before January 1, 2005, then you are legally married and you will be treated as a married couple for legal purposes, including the requirement that you get a legal divorce in order to end your relationship. In order to have a valid common law marriage, a couple must have intended to be married, must have lived together for a significant period of time, and must have held themselves out as a married couple

RayAnswers :

If they were together prior to Jan 1. 2005 and held themselves out as common law she might have a claim there for her spousal share.She woudl have to prove this up in probate court.

RayAnswers :

So keep that in mind as a last resort.You can argue they were common law married here , note that common law has been abolished as of the 1/1/2005 forward so she woudl have to prove they were common law prior to this date.

RayAnswers :

Please let me know if you have more follow up.I appreciate the chance to help you today.Thanks again.

Customer:

No, there is no will and although they are looked upon as husband and wife, he does have dementia and i believe the children would argue a legal binding marriage at this point.

RayAnswers :

Reference for you here --she could prove up the relationship prior to 20015 you say they have been together since 1983..

RayAnswers :

If she proves it she has a half interest--spousal share so it would be worth fighting for.You may want to gather some pics and statements from others now so she can present her claim in probate later.

RayAnswers :

This certainly would at least give her a half interest. If he were to deed it to her they would have burden to show he lacked capacity so you might want to consider that too.

RayAnswers :

I mean he may have lucid moments so they might have trouble.

RayAnswers :

Trouble proving otherwise that the meant to gift it to her.

RayAnswers :

So she may have a good potential claim for spousal share.

RayAnswers :

Thanks for letting me help you here.

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