PostsI recently was involved in an estate where a gentleman had passed without a will leaving a surviving spouse and three children. This deceased gentleman was in his late 60’s and his first wife had died several years previously. His second wife was in her late 40’s, in fact, just a few years older than his children. Although his second wife and his children had always gotten along prior to his death, the Delaware law of intestate succession put substantial strain on their relationship once they became aware of the distribution required by law.
Because this gentleman had died without a will he is said to have died intestate. In this situation where he left a surviving spouse who is not the mother of the surviving children, Delaware law entitles her to a life estate in all her deceased spouse’s real estate and one half of all his other property. The surviving children are entitled to a remainder interest in the real estate (to take possession of it after she dies) and the other half of all their father’s property. As to the real estate, this was particularly awkward because neither the stepmother nor the children completely owns the property and, because she was only in her 40’s, the children were facing a very long wait to take possession of the house. The stepmother had a difficult time selling her interest in the house because she only owned the right to possess the home during her lifetime. To sell the home, both the stepmother and children had to join in the transfer to convey both the lifetime and remainder interests. Requiring the children’s agreement to sell the property caused particular problems for the stepmother because there was disagreement as to the proper method to value her share of the sale proceeds. The value of the stepmother’s share was based on her life expectancy, which hotly contested given that the stepmother was in poor health and was not expected to live to her actuarial life expectancy.
In the end, a far greater proportion of the estate assets were spent on litigation between the heirs instead of going to the heirs which was the intent of the deceased gentleman. If he had made a will clearly defining who was to receive these assets upon his death, these disputes would have been avoided and the estate’s funds would have been preserved.