Surviving spouses have important rights granted to them under Georgia law, including:
- Intestate Share
- Pretermitted Spouse Rights
- Support Allowance
Surviving spouse rights in Georgia are sometimes not automatic unless time-sensitive deadlines are met. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.
Surviving Spouse Rights If There Is No Will – Intestacy
If someone dies without a will, they have died intestate. This means that Georgia law controls the amounts that the decedent’s heirs inherit. In Georgia, a surviving spouse’s share of the intestate estate depends on whether or not the decedent had children, and how many children the decedent had. See Georgia Code section 53-2-1.
Surviving Spouse’s Share – No Children
If the decedent dies with no children, then the surviving spouse is entitled to the entire intestate estate.
Surviving Spouse’s Share – Children
If the decedent dies with children, the spouse shares equally with the children, but does not receive less than 1/3 of the intestate estate.
For example, if there is one child, the surviving spouse is entitled to 1/2 of the intestate estate. If there are two children, the surviving spouse is entitled to 1/3 of the intestate estate. If there are three or more children, the surviving spouse is still entitled to 1/3 of the intestate estate. Sometimes determining the legal descendants of a decedent can be complicated, as demonstrated by the Georgia Supreme Court case of Sanders.v.Riley.
A Pretermitted Surviving Spouse Has Rights Under Georgia Law
If a person makes a Will and then marries a person not provided for in the Will, the surviving spouse is called a pretermitted spouse. Under Georgia law, a pretermitted spouse is entitled to a right of election. The right of election is allowed if the surviving spouse was disinherited (left out of the will), regardless of whether the omission was intentional or accidental.
Surviving Spouse Has the Right To Petition for One Year Of Support
Pursuant to Section 53-3-3 if a surviving spouse is left minimal or no property in the decedent’s will, the surviving spouse has the right to elect a financial support for one year following the decedent’s death.
Under Georgia law, the surviving spouse is entitled to twelve (12) months support and maintenance from the date the estate administration commences.
The Court may extend this time frame if the estate administration takes more than one year. If the decedent’s will makes a provision in lieu of the year’s support, the spouse may elect to obtain the support allowance.
The petition for year’s support shall be filed within 24 months of the date of the death of the decedent. Section 53-3-5.
Marital Agreements and Spousal Creditor Claims
Marital Agreements which are often referred to as prenuptial agreements, ante-nuptial agreements, and post-nuptial agreements, can waive or create rights upon the death of a spouse. It is imperative to have a lawyer review these agreements who is familiar with the probate process to properly address any rights you may have at death or as a surviving spouse.
It is also important to have these documents properly reviewed by experienced probate lawyers to ensure any death time provisions are properly addressed prior to signing any of these agreements. Many of the rights of a surviving spouse can be waived or increased in properly drafted agreements.
A Surviving Spouse Might Have A Creditor Claim
• TIMELINE TO FILE A CREDITOR CLAIM. If a surviving spouse of a Georgia decedent has a Marital Agreement, it is imperative that his or her attorney file a protective creditor claim to preserve these contract rights of the surviving spouse. Following publication of notice by the estate’s personal representative (in accordance with Section 53-7-41) creditors have must give notice of claims within three months. Creditors who fail to do so shall lose all rights to an equal participation with creditors of equal priority to whom distribution is made before notice of such claims is brought to the personal representative, and they may not hold the personal representative liable for a misappropriation of the funds.
• FORM AND VERIFICATION OF CLAIM. Filing a claim against the estate of a decedent must be made in proper form. Failure to comply with the court’s requirements may result in your claim being rendered unenforceable in court. In order to avoid unnecessary risk, it is advised that experienced counsel be retained to ensure that the claim is properly protected and all the rights of the surviving spouse are preserved.
Requirement to File a Known Will
Under Georgia law, and pursuant to Section 53-5-5, a person having possession of a will shall file it with reasonable promptness with the probate court of the county having jurisdiction. The probate court may attach for contempt and may fine and imprison a person withholding a will until the will is delivered.