If a spouse dies and has a will leaving property to a child do they get it or does everything automatically go to the surving spouse.?

Answer 1

A person can leave property to anyone they choose. However, they cannot disinherit their spouse in MOST jurisdictions. If the father left everything to a child, his spouse has the right to make a claim to the court for a share in most states.

The amount of the spousal share would be governed by state statute and may include a third or half interest of certain property. The scheme varies from state to state in those states that provide the spouse with an automatic share. It may fall under "elective share", "dower rights" or more complicated formulas in community property states.

Any property that falls outside of that automatic share could be devised to a child of the deceased or any other family member, friend, charity, etc. You would need to check the laws of your state. If you find yourself on either side of that situation you should seek the advice of an attorney as soon as possible who could review the estate, explain your options under your state law and make a claim, if necessary, within the statutory time frame.