Georgia law affords surviving spouses important rights and benefits.  In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.

What if a Spouse Dies Without a Will?

  • INTESTATE. When an individual dies without a will, intestate succession law will govern.  Under Georgia law, a statutory framework determines how a decedent’s estate will be distributed.  This is referred to as Intestate Administration.
  • INTESTATE SHARE.  If a spouse dies without a Will, the surviving spouse receives an intestate share.
  • SHARE OF SURVIVING SPOUSE – NO CHILDREN.  If the only survivor is a surviving spouse then the surviving spouse, pursuant to Section 53-2-1(c)(1) receives the entire estate of the decedent.
  • SHARE OF SURVIVING SPOUSE – CHILDREN OF DECEDENT.  If the decedent is surviving by a spouse and one child, each is to receive one-half of the estate. If the decedent had children, the surviving spouse has a right to a minimum of one-third of the estate.

What is a Pretermitted Spouse?

  • PRETERMITTED SPOUSE.  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.  This is permitted if the surviving spouse was disinherited (left out of the will), regardless of whether the omission was intentional or accidental. Pursuant to Section 53-3-3 if a surviving spouse is left minimal or no property in the decedent’s will, she can elect a financial support for one year following the decedent’s death.

Elective Share or Election Against a Will

  • ELECTIVE SHARE. Under Georgia law, the surviving spouse is entitled to twelve (12) months support and maintenance from the date the estate administration commences.  Section 53-5-2.  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. Section 53-5-5.
  • DEADLINE FOR FILING FOR THE ELECTIVE SHARE.  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.Exempt Property
  • As noted above, the surviving spouse and minor children of a testate or intestate decedent are entitled to year’s support in the form of property for their support and maintenance for the period of 12 months from the decedent’s death.  Section 53-3-1(c).  This provision of year’s support is preferred before most other debts according to the priority of claims delineated in Section 53-7-40. It is prudent to consult with an experienced probate attorney in order to determine the preference of a surviving spouse’s entitlements and the preference of claims in an estate’s administration.

Marital Agreements

  • MARITAL AGREEMENTS.  Martial 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.
  • 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

  • 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.

What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?

  • Some probate lawyers who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where the surviving spouse client has no up-front payment obligation.