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dkennedy, Lawyer (JD)
Category: Legal
Satisfied Customers: 6009
Experience:  Juris Doctorate Degree
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My brother in law has a few days left, is hospitalized for ...

Customer Question

My brother in law has a few days left, is hospitalized for comfort and wants to prepare a will for his common law wife. He was marriage for 8 months, but decided he wanted out, but never divorced. Now, after 35 years with present common law wife, he wants to give her 100 % of all his estate. What does common law wife do, get lawyer/notary public to have husband write his will? He is still coherent and wants this.
Submitted: 9 years ago.
Category: Legal
Expert:  dkennedy replied 9 years ago.

Hello bmclinton,

There is no common law marriage in Arizona. But, he has the right to make his will out whatever way he chooses. However, if he is still married to someone else, that could be a problem. Arizona law permits you to disinherit your spouse, but not completely. Upon your death, your spouse will be entitled to a package of statutory allowances from your estate, worth $37,000, or more. This means that your spouse will receive the first $37,000 from your estate, even ahead of your creditors. You can enter into a prenuptial agreement or a postnuptial agreement with your spouse to waive this right. Such agreements are strictly regulated by law; each side should be represented by legal counsel, and such agreements must be fair. The will needs to be witnessed by two people. The legal "wife" may or may not cause any complications, but it sounds like he may have to divide up his estate.

I wish you all the best.