How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Lawyer Lori Your Own Question
Lawyer Lori
Lawyer Lori, Lawyer
Category: Family Law
Satisfied Customers: 2161
Experience:  Divorce, custody and child support attorney.
Type Your Family Law Question Here...
Lawyer Lori is online now
A new question is answered every 9 seconds

My husband and I are still married but live apart. If he creates

This answer was rated:

My husband and I are still married but live apart. If he creates a living will excluding me, do I have any rights?

Lawyer Lori :

There are laws in place to protect surviving spouse's (which you would be even if you are living apart). Essentially, you would be entitled to claim up to one-third of any assets passing by will to other beneficiaries.

Lawyer Lori :

Here's the statute that controls:

Lawyer Lori :

§ 2211 Determination of effect of election; enforcement

(a) Power of court of domicile.--After notice and hearing, the orphans' court division of the county of the decedent's domicile shall determine all matters concerning the spouse's election, including the interests and liabilities of the spouse and others in or with respect to all property, regardless of its situs, which is subject to the election or which must be disclaimed, released or conveyed by the spouse or charged against the elective share.

(b) Effect of election.--In exercising its powers under subsection (a), the court shall honor any provision in the decedent's will or other conveyance concerning interests of those other than his spouse in the event of an election. Subject to any such provision, the court shall be guided by the following rules but shall have the power to supplement or to depart from them if, in its opinion, a different determination of the rights of the spouse and others would more nearly carry out what would have been the particular decedent's intention had he known of the election:

(1) In general.--Property which otherwise would pass by intestacy shall first be applied toward satisfaction of the spouse's elective share. The balance of the elective share shall then be charged separately against each conveyance subject to the election, the passing of property by will to be treated as a conveyance for this purpose, but the spouse shall have no right to share in any particular item of property within each conveyance. After the value of the electing spouse's fractional interest in each conveyance at the time of distribution is determined, items of property within the conveyance may be allocated disproportionately at distribution values between the elective and nonelective shares in order to give maximum effect to the decedent's intention with respect to the disposition of particular items or kinds of property. Property in the nonelective share shall be distributed among the beneficiaries of each conveyance in accordance with the rules of abatement or by analogy thereto.

(2) Disclaimed interests contingent on survival.--If a surviving spouse has disclaimed an interest which would have terminated at the spouse's death or was contingent upon the spouse surviving the decedent, the interests of others shall be as they would have been if the spouse had predeceased the decedent.

(3) Other disclaimed interests.--Except as above provided, disclaimed interests shall pass to other beneficiaries of the conveyance according to section 2514 (relating to rules of interpretation), which may be applied by analogy to inter vivos conveyances or, where those provisions cannot be applied, by way of reversion to the personal representative of the decedent's estate.

(4) Windfalls.--If the election and disclaimers, releases and conveyances by a surviving spouse in connection therewith result in an increase in the value of the interest of a beneficiary, the court may require contributions from such a beneficiary, directly or by sequestering the disclaimed, released or conveyed interests, in relief of other beneficiaries, so that no beneficiary will receive more value than he would have received in the absence of the election.

(c) Enforcement.--The rights of the electing spouse may be enforced, as the court considers appropriate, by orders, decrees or judgments requiring the performance of specific acts by, or imposing personal liability on:

(1) any fiduciary, custodian or obligor to the extent that he is in possession of property subject to the spouse's election or its proceeds; or

(2) the original beneficial recipient of such property or the donee of that recipient, including successive donees, to the extent that each donee is in possession of such property or its proceeds.

Any such order, decree or judgment of the orphans' court division of the county of the decedent's domicile under this section may be further enforced as necessary by suits in other courts. The liabilities as determined by the court may be enforced against fewer than all persons against whom relief could be sought but no person shall be subject to contribution in any greater amount than he would have been if full relief had been secured against all persons subject to contribution.

(d) Restraining orders.--The court on petition of a surviving spouse may restrain any person from making a payment or transfer of property which may be subject to the spouse's election, either before or after an election is made.

(e) Protection of fiduciaries, custodians and obligors.--Unless restrained by court decree, no fiduciary, custodian or obligor, other than the personal representative of the decedent's estate, shall be liable for making such payments or distributions of property subject to the spouse's election as would have been required by the terms of the conveyance or contract in the absence of an election.

(f) Transferees and lienholders for value.--No transferee of or holder of a lien against property subject to a spouse's election shall be liable to a surviving spouse if the transferee or lienholder has given a bona fide consideration, unless a certified copy of an order or decree of court providing to the contrary with respect to real property has been recorded in the office for the recording of deeds of the county where the real estate lies prior to the recording of the transfer or the entry of the lien of record. The recording of any such order or decree shall be indexed in the grantor's index under the name of the decedent.

Lawyer Lori :

Sorry, I misread your question and answered it for a Last Testament and Will - which is for the distribution of his property following his death.

Lawyer Lori :

A living will, on the other hand, is an end-of-life directive which states which, if any, life-sustaining treatments he wishes. If he designates someone other than you as his surrogate, they would have the right to make any medical decisions for him.

Lawyer Lori :

Please let me know if I can provide you with any other information.


My husband changed his benificiary on his insurance policy since we split up. He named his daughter as the benificary. What are my rights in this situation?

Lawyer Lori :

I'm sorry, but a life insurance policy passes outside of probate and, therefore, you would have no rights to any of the proceeds.


Thank you

Lawyer Lori :

You're welcome and have a good new year. If I have answered your question, please remember to hit the ACCEPT button so that I receive credit for my work.

Lawyer Lori and 3 other Family Law Specialists are ready to help you

Related Family Law Questions