Can my children claim my deceased husband’s inheritance?

Imagine the hypothetical situation where your husband died before his mother. When his mother dies, what happens to your deceased husband’s inheritance? Where does it go? Do your kids get it? Do you get it? Do your kids get completely cut out?

As you may have guessed, the answer is, “It depends.”

Is There a Will?

It depends on how your mother-in-law’s Last Will and Testament is worded – if there is one. If there is not a Will, then the situation is entirely controlled by the New Jersey intestacy statutes.

If there is a will, then It also depends on the types of devises your husband would have received under his mother’s will.

Types of Devises

A devise is what many people call an inheritance. It’s a testamentary disposition of real or personal property. NJSA 3B:1-1. It’s the amount of money or specific property that a person receives from a decedent that is specified in a Last Will and Testament.

There are two kinds of devises: specific and general. A specific devise is something that is a tangible item, real or personal property or specific amounts of cash, given to a specific person. A general devise does not require the delivery of any specific property, only that an amount be given from the general assets of the estate.

Look at the Will

The first place that you look is the Will. If the Will was drafted by an estate planning professional, the Will likely says what happens if an heir dies before the testator – here, your mother-in-law.

An example would be, “My black Les Paul guitar, to my son, Daniel, but if Daniel should predecease me, then to my daughter, Amanda.” In this situation, if Daniel died before the testator, then Amanda would receive the guitar.

However, if the Will states, “My black Les Paul guitar to my son, Daniel, but if Daniel should predecease me, then to his issue,” then if Daniel dies before the testator, then Daniel’s children, if he has any, would inherit the guitar.

What to Do Where the Will Doesn’t Say What Happens?

What happens if the Will just says, “My black Les Paul guitar, to my son, Daniel.”

In this situation, if the Will doesn’t state otherwise, you’ll be looking at the Anti-Lapse Statutes under New Jersey Law. Where the heir who died is a descendant of a grandparent of the decedent, then the devise passes to the heir’s surviving descendants by representation. N.J.S.A. 3B:3-25.

Here, because your husband, Daniel, is a descendant of the decedent’s grandparent (that’s his mother’s parents), then his children will receive his specific devise in equal shares. This means that if there are two children, each child will receive 50% of the Black Les Paul

As you can imagine, owning half of an expensive guitar can result in some issues, which is why it’s best to have alternative heirs for specific devises.

How to Prevent this from Happening?

Suppose that your mother in law did not intend for your children to get this amazing guitar? How could your mother in law prevent this from happening?

The first, and easiest way to ensure that the specific devise goes to the right person is to add an alternative disposition. This read something like, “My black Les Paul guitar, to my son, Daniel, but if Daniel should predecease me, then to my daughter, Amanda.”

Here, Amanda is the alternate heir for the black Les Paul guitar. If Daniel were to die before his mother, then his sister Amanda would receive the guitar instead of Daniel’s kids.

Suppose that your mother-in-law really did not want your children to receive anything from her, no chance, no way. She could then expressly disinherit your children by name. By disinheriting your children, she would prevent them from inheriting anything under her Will.

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