Ask the Attorney: Will I Inherit a Portion of My Father's Life Insurance if He Died Without a Will?

A reader asks what happens when there is no will but there is a life insurance policy and other assets.

Dear Ask the Attorney: 

My father died without a will. He had a life insurance policy at work.  I just wanted to know if I will inherit a portion of it.  My mother passed away.  I'm the eldest child. I'm married and live on my own. My brother, who is single, and my sister, who just matriculated, lived with my dad. Will I inherit a portion even though I am married?


Our guest blogger is Gary R. Botwinick, Esq., a Partner with Einhorn Harris and Chair of the Taxation/Trusts and Estates DepartmentHe assists business owners, families and individuals in all areas of tax and estate planning as well as representing clients who have tax controversies with the State of New Jersey and the IRS. 

Dear Yazeeto:

I am sorry to hear about the death of your father.  Because your father died without a will, he has died “intestate”.  That just means that he had no will.  When an individual dies intestate, the laws of the state in which he was domiciled (or resided) when he or she died govern the disposition of his estate.  Assuming that your father was domiciled in New Jersey, the disposition of his estate will be governed by New Jersey’s laws of intestacy. These laws are quite complicated, and depend upon the family structure, but I will answer your question based upon your set of facts.

The law sets forth a hierarchy of relationships to the decedent (or person who died) for purposes of determining the share of each family member.  You indicated that your mother is deceased.  If she died before your father the next heirs with a right to inherit the intestate estate are your father’s children-  in this case, you, your brother and your sister.,.  You will all be entitled to an equal share.  If your father had a child who died before him, the children of the deceased child will share the portion of the estate the deceased child would have received had he survived. 

The fact that you are married, and live on your own, has no bearing upon the settlement of your father’s estate.  Nor does it matter that your brother is single, your sister just matriculated (enrolled in college), or that they both lived with your father. 

You indicated that your father had a life insurance policy through work.  A life insurance policy is usually subject to a beneficiary designation which the insured will complete during his lifetime.  The beneficiary designation trumps a will, and also trumps the laws of intestacy.  In other words, the only way to know if you are entitled to a share of the life insurance is to find out from the employer or the insurance company if your father designated you as a beneficiary.  If your father did not complete a beneficiary designation form, then the policy is usually payable to the estate.  At which point you will be back to the laws of intestacy.

This should be a good example of why you should always have a will to govern the disposition of your estate.  You should never rely on the laws of intestacy as a substitute for setting forth in details what your wishes are.  It is always more expensive than simply having a will drawn up that carries out your desires.

“Ask the Attorney” is a blog in which answers to your legal questions submitted to asktheattorney@einhornharris.com may be answer.  The answers to the questions are for informational purposes only and are not to be construed as legal advice or the creation of an attorney–client relationship.  The facts of each case are different and you should therefore seek competent legal representation. 

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Ron Greenfield February 02, 2013 at 02:17 PM
The other key question in determining if the writer will share in the life insurance proceeds is: did your father die while still working for the company that provided the insurance policy? Most life insurance provided in the workplace only provides coverage while still employed. If your father was an owner or executive of the company there is a greater chance that he owned permanent insurance that would survive his death, termination, separation or retirement. If he was fortunate enough to own a permanent life insurance policy then hopefully he designated a beneficiary or beneficiaries. One of the biggest life insurance problems is that people don't update their beneficiaries. Too often an ex-wife is the beneficiary or parents remain beneficiaries despite subsequent marriage and possible children or only one of several children is named because there was no proper estate planning review done periodically during the primary insured's lifetime. (To anyone reading this, review your beneficiary designations!) My condolences on the passing of your father. I hope this adds to the previous answer and doesn't confuse you.


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