Conflict of Succession Laws - Succession

Succession

In some states, there is complete freedom for testators to leave their assets to whomever or whatever purpose they wish to promote. But the majority of states allow surviving spouses, children and dependents of a locally-based deceased to claim against the estate if the will fails to make adequate provision for them. Some proactively limit the testator's capacity by imposing minimum provisions for surviving dependents.

Although these rules are relatively clear in their operation during the subsistence of the marriage, determining the effect of either a divorce or nullity decree is more problematic if, by its existence or the terms of any order made, it purports to adjust the property entitlements of the other spouse. For example, suppose that a husband obtains a nullity decree in a state declaring the marriage to have been void Ab initio. If that decree is recognized across state boundaries, the effect would be to remove any claim that the supposed "wife" would otherwise have had.

As to the testator, all questions of status and capacity should be determined by the personal law at the time the decree is granted. Thus, if the decree is recognized, either the status will be modified so that the testator was never married and this will retrospectively validate or invalidate previous dispositions, or the testator is now single and able to dispose of his assets in any way permitted by his personal law.

But as to the putative wife, any entitlement she will have will be determined by whether the lex situs of any "matrimonial" assets recognizes the decree. If the decree is not recognized, she will remain a wife for the purposes of succession protected by the local system of mandatory heirship or community property laws.