Question:  I lost my fiancé in a car accident a few months ago. The police think he was driving drunk. He was completely separated from his wife. He was not divorced from her though. He always said he was going to get a divorce from her and they both had moved on. They barely even spoke. He said he was going to contact a Roswell divorce lawyer soon. He thought it could be an uncontested divorce.

We lived together and have children together. We talked about maybe getting married next year.

Does she have any legal rights over his estate? Also, he pays child support to another woman. Will child support be taken out of his estate? He was supposed to pay for college for this child with me as well. Will that also be taken out of his estate?

J.V. in Roswell, GA

Answer:  Let me start by saying that I am very sorry for your loss.

To answer your question, as long as they were legally married, she is generally entitled to a portion of his estate. However, if he has a Last Will & Testament (a “will”), it will be probated. His wife may have a right of election against it if she is not included in the will. This basically means she cannot be disinherited and is entitled to a statutory percentage of the estate. She can waive this right though.

If there is not a will, the estate will go through the administration process according to state laws. This means that the assets will be distributed according to state statutes. It's possible that his wife could actually inherit a large portion of his estate. In general, spouses who are still legally married but living apart are treated as married for purposes of splitting an estate.

Unfortunately, as the fiancé, you will be entitled, most of the time, to almost nothing. You won't be able to do such things as close his accounts or transfer his titles to yourself. Since you never married, the Department of Driver Services or bank will not allow that.

The children, however, could share in his estate. As for child support for the other child, his child support obligation ended at his death. Neither the child support or college costs will be taken out of his estate. However, this child and your children (as long as they are your fiancé's children) could be entitled to a part of his estate.

Sometimes in a divorce situation a party will agree to carry a life insurance policy to provide for child support and/or alimony in the event of death.

Getting divorced after separation prevents former spouses from receiving parts of your estate. And having a will leaves your estate protected the way you want it.

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