Question: I filed for divorce nearly two years ago and, because of delays and procrastination by lawyers, before a final order was granted by the court, my husband died. That was six weeks ago. Then, just last week, I learned that my husband had changed his will during the divorce proceedings and left half of everything to his girlfriend and the other half to our two children. In other words, he cut me out. He appointed his girlfriend as the personal representative of his estate. Since I do not live in a community property state and since almost all of the assets were titled in his name, my lawyer is telling me that I must contest his will in the probate court and that I should get a third of his estate.

Because he and I were married for nearly 30 years and because I have no employment experience or skills, I do not believe that one-third is enough. I did find out that he had tried to change me as the beneficiary of his retirement plans, but he was not allowed to do so during the divorce. His girlfriend has threatened to sue me over this.

Is there anything I can do to make sure that I receive my fair share? I am 59 years of age. Thank you.

Answer: As you are learning, the unexpected death of a spouse during divorce proceedings can lead to even more complicated issues, including the requirement that a surviving spouse deal with both the family court and the probate court.

Generally speaking, the courts in a majority of states have ruled that although the death of a spouse during a divorce or separation proceeding will terminate the surviving spouse's rights to receive a continuing award of alimony and support, the right of a surviving spouse to receive his or her fair share of marital property will survive. Some states have allowed a lump sum alimony award.

Even though the assets acquired during the marriage may have been titled in your husband's name, at the instant you filed your divorce action, your equitable interest in the property you and he acquired during the marriage became "vested" in what is called "the marital estate". After this marital property has been identified and valued, it is subject to being equitably divided by the family court based upon the particular rules of the state in which you live. Again, once your ownership interest is vested, your share can be apportioned by the family court regardless of your spouse's death. In determining your share, the court can consider the fact that you will not be receiving alimony as a factor to increase your share.

Based upon a federal law designed to protect spouses which is called "ERISA," your husband was not able to dislodge you as the beneficiary of his qualified retirement plans, and those should remain yours. At the same time, since all states protect surviving spouses from being "cut out" of estates, you are entitled to go into the probate court and to "elect" to take against your husband's will and to receive a spouse's share of his estate -- which is generally one-third. However, if you proceed in the probate court in this fashion, you may well be taking a position that is inconsistent with the family court proceeding where you may be entitled to a greater share of his estate.

Bottom Line: We suggest that you, your matrimonial lawyer, and an experienced probate lawyer sit down and map out your strategy. We suggest that you look at the assets and determine where you will have the best chance of getting the most. Since your husband's retirement plans named you as beneficiary, these are non-probate assets over with the probate court will have no jurisdiction. If you decide to proceed in the family court, your husband's estate must be substituted as a party in that action which means that you will be litigating against your deceased husband's girlfriend.

We believe that since you have sacrificed the major part of her career building years, at your age, you can make a compelling argument in the family court that without receiving more than one-third plus attorney's fees, you could be lift destitute. Good luck.