Full question:
I live in Phoenix, Arizona. My husband and I had been married for 30 years. My husband recently passed away and had left a will. He had chosen to bequeath a part of his property to his nephew. However, I am unhappy with the instructions in the will and his bequeathment to his nephew. Can I choose not to follow my husband’s will and divide up his estate in any other legal way?
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: Arizona
Answer:
Spouses at death, usually leave money and property to their surviving spouse through a formal document call. Further, a will may not be the final word regarding the decedent's estate and in many states, the surviving spouse may choose an alternative called the right of election whereby the surviving spouse can elect to take an amount specified in the state statute instead of receiving the amount specified in the will. However, in Arizona, the surviving spouse has no right to an elective share because it is a community property state, but the surviving spouse is entitled to his or her respective share of the community property. In Arizona, if a spouse dies without leaving a will, then the surviving spouse’s share of decedent’s estate is contained in AZ Rev Stat § 14-2102:The following part of the intestate estate, as to both separate property and the one-half of community property that belongs to the decedent, passes to the surviving spouse:
1. If there is no surviving issue or if there are surviving issue all of whom are issue of the surviving spouse also, the entire intestate estate.
2. If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate separate property and no interest in the one-half of the community property that belonged to the decedent.
In Arizona, wills are superior to intestate succession laws. Therefore, if the decedent spouse leaves a will, and if its terms are legally valid, then the decedent spouse can bequeath their share of community property to whomever they choose. Here, since Arizona is a community property state and does not have a right of election, you have to follow the instructions in your husband’s will. However, if your husband had bequeathed any of your half of separate or community property, you can file an objection in the probate court to block it.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
