Family Law

questions & answers

Question: What are my rights if my boyfriend passed away but his divorce is not final and we have three minor children?

Answer: Arizona Revised Statute 25-805 states: “If after the petition is filed the petitioner dies, becomes insane, departs the state or fails to litigate the issue, the proceedings do not abate but may be continued, with the state as petitioner, as to any child in the legal custody of any state agency, or as to any child who is the beneficiary of any state or federal financial assistance.”

Arizona Revised Statute 14-2508 states: “Except as provided in sections 14-2803 (Murder of decedent) and 14-2804 (Termination of marriage), a change of circumstances does not revoke a will or any part of it.”

Children born after a will was signed will still receive a share of the estate in either of the following ways: “1. If the testator had no child living when the testator executed the will, an omitted child receives a share in the estate equal in value to what the child would have received if the testator had died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.
2. If the testator had one or more children living when the testator executed the will and the will devised property or an interest in property to one or more of the then-living children, an omitted child is entitled to share in the testator's estate as follows:
(a) The portion of the testator's estate in which the omitted child is entitled to share is limited to devises made to the testator's then-living children under the will.
(b) As limited under subdivision (a) of this paragraph, the omitted child is entitled to receive the share of the testator's estate that the child would have received if the testator had included all omitted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.” (A.R.S. 14-2302).

If a person dies without a will, the laws of intestate will apply. Children born out of marriage are considered heirs and will still be able to inherit from the estate. To view these laws, please read Arizona Revised Statute 14-2101 through 14-2114.

For advice specific to your situation, please speak with an attorney. You may call the Legal Learn line at (866) 637-5341, to see if you qualify for a free consultation as part of the Arizona Military Assistance Program, or a reduced fee consultation with an attorney as part of the Modest Means Program.