Legal Question in Wills and Trusts in Georgia

If a man in Georgia, dies without a will, does his wife inherit the home or do the children have a claim to it to the extent they can have the wife evicted?

Asked on 8/13/13, 1:19 pm

2 Answers from Attorneys

Robert Gardner Hicks, Massey & Gardner, LLP

In terms of inheritance, when a person dies in Georgia without a will, and barring the filing of a year's support by the spouse (see below) the property of the estate should be distributed "per stirpes", which means to his spouse and child equally, with the caveat that the spouse receives no less than one-third. This formula means that a spouse, so long as she does not own 1/2 of the house already via deed or joint ownership, would always have less of a share than the children when there is more than one child. However, she would still be at least a 1/3 owner of the home, so she could not just be evicted. If she refuses to leave or sell, an action to partition and sell the property may be the only way to get her out. These situations can get very ugly, and often do when the spouse is not the mother.

However, a spouse (for themselves or their minor children) may file an action for year's support, stating that she needs all of the property in order to live, and can use that to cut out the adult children of the person who dies. Year's support petitions are very hard for children to overcome, resulting in the spouse getting everything, including the house, and the children getting nothing.

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Answered on 8/13/13, 2:05 pm

I agree with Attorney Gardner. I only point out that based on your facts you do not indicate how the man owned the land. If he owned jointly with the wife as a joint tenancy with right of survivorship. If so, then the home would pass to the wife outside of probate.

As noted, if the man owned the land solely, then the wife has a 1/2 to 1/3rd share of the estate (depending on how many children the man had - if he has 1 child, the child and wife split the estate; if there are 2 or more children then the wife gets 1/3 of the assets).

Of course, this assumes the man had probate assets. Not all assets are probate assets. Examples of things that pass outside of probate are land owned with a right of survivorship, joint bank accounts or beneficiary-designated assets like life insurance or a pension. If the wife was named as a beneficiary or had a joint checking account, then she may well end up with most nearly everything after the spousal yearly allowance and family exemption are considered.

If you are the surviving spouse, then I suggest that you get a probate attorney who practices in the county where you and your husband lived at the time of his death. You will need to probate an estate for your husband and ensure that you timely file your claim for the spousal allowance.

If you are the children, then you need to get your own probate attorney to see that an estate is properly administered and to make sure that the wife does not get anything more than what she is entitled to under the law. And hope that the spouse does not file a claim for her year's allowance.

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Answered on 8/13/13, 9:29 pm

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