I have been divorced from my ex-spouse for over 10 years. Recently, our emancipated child (not married, no children) died in a motor vehicle accident. My understanding is that, in this situation, each parent is entitled to receive 50% of the estate. I’m trying to get my ex-spouse to cooperate in generating an estate inventory. Although there are not a lot of tangible assets (child’s vehicle was totaled in the accident), my ex-spouse has been solely making final decisions regarding the estate (distribution of assets, closing bank accounts, etc…) and is actively declaring that I am not entitled to the payouts of from insurance claims (claiming that money would go to them) because our divorce granted them physical custody (but shared legal). Would this be considered theft from the estate?

ANSWER BY MARGARET CROSS-BELIVEAU:

Inheritance has nothing to do with custody.  A child’s assets aren’t owed to a parent based on who paid more or physical custody before emancipation.  Insurance is paid out to whoever is a beneficiary of the policy.  Bank accounts would have to go through probate unless there was a transfer on death designation on the account or a jointly held account. You ex has no authority over probate assets unless he has been appointed the personal representative of the estate.  The probate would have been opened in the county where your child was living.  Check with the probate court to determine if an estate was opened.  You have just as much right to be the personal representative of the estate as your ex.

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Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The estate administration and estate planning attorneys at the Beliveau Law Group provide legal services for estate planning, probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.