Do children of collateral heirs inherit before their widows/widowers?

+3 votes
I have been researching a complicated probate record for a man who died intestate without issue in Rhode Island, USA around 1843.

 While his eight siblings with issue had all predeceased him.  What ensued was a complicated but genealogically rich division of his estate among the nieces and nephews and a few great-nieces and nephews.  I just confirmed today that one of these siblings still had a living spouse throughout the probate process, still with the same surname so presumably not remarried, but she was not listed as a legatee and instead each of her children was.  

My understanding of simpler probate cases is that if a husband dies before his parents and the widow has not remarried, then she is entitled to her husband's share if the parents die intestate.  Is this wrong?  Is the situation different with spouses of collateral heirs?
in Genealogy Help by Barry Smith G2G6 Mach 9 (95.9k points)
retagged by Ellen Smith
You probably need to tag this with the Country or if in the US the state and mention the date; inheritance laws vary enormously.(i.e  when we moved to France we had to take into account that their laws of inheritance as regards spouses were  very different to those in England.In our case we had to get a marriage contract to assure that  the remaining spouses rights could  inherit everything, even with a will)
Under which law? If you're talking about English common law, widows of an intestate only inherited a life estate in their dower, and any claims under her dower rights were extinguished upon her death. In the case you're talking about, I think (and depending on any superseding statutes in that jurisdiction) the rights of the brother's widows would depend on the terms of their wills, if any. Dower only applied to real estate acquired during the lifetime of the husband, so she would not have dower rights to real estate "inherited" after his death, _but_ (after 1540) it was possible, though rare, for widows to inherit a permanent (fee simple) interest in real property by testament. That was fairly exceptional though, so in most cases, and in the case of intestacy, the widows wouldn't get anything out of it. Later on, most Anglo jurisdictions changed the laws of succession so that surviving spouses inherited some specified portion of property with full legal rights, in fee simple, but in earlier times, widows' property rights could be pretty thin.
I updated the question so it now says USA mid-1800s -- Rhode Island.  Also, the bulk of the estate was shares in banks, so not real estate, and my understanding is that doesn't count as "possessions" either, but perhaps counts as personal property?
Oh, for mid-1800s, you're going to have to crack open some old law books. In America, the big sea change in intestacy laws was after the Revolution, and by 1850 it was starting to get into a more liberal concept of property rights. Yes, that counts as "personalty" too so it's a whole different animal from real estate, though the tendency was for later legislation to remove a lot of the differences between them. By the mid 1800s, a lot of the medieval baggage in real estate inheritance had been abolished, but you have to look at the particular state.

3 Answers

+3 votes
The spouse of his sibling is not his legal heir as there is no biological relationship. His nieces and nephews are his legal heirs. Any living siblings would have inherited a portion and the offspring of any deceased siblings would inherit what would have been the parents' portion. If the offspring of a deceased sibling is also deceased then the offspring of the deceased offspring would inherit that portion, and so on.
by Deb Durham G2G Astronaut (1m points)
Their is no biological relationship usually between a husband and wife, but they are legal heirs of each other.  Is that the only case where that is true?
Yes, basically it is, I believe.
Adopted children are usually legal heirs too, but you have to look at the particular statute that was in force at the time. On occasion, even stepchildren can inherit, but that's still fairly unusual.
+1 vote

Here is the section from the Rhode Island statutes regarding Intestate inhertance:

§ 33-1-1. Real estate descending by intestacy to children or descendants, parents, or brothers and sisters. 
Whenever any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in equal portions to his or her kindred, in the following course:

(1) First to the intestate's children or their descendants, if there are any.

(2) Second, if there be no children nor their descendants, then to the intestate's parents in equal shares, or to the surviving parent.

(3) Third, if there is no parent, then to the intestate's brothers and sisters, and their descendants. 

by Carol Wilder G2G6 Mach 3 (38.1k points)
edited by Carol Wilder
+2 votes
I have no idea about the probate law, but...

Congratulations on this wonderful find! Those aunts and uncles are great for finding family!
by Kay Sands G2G6 Pilot (270k points)

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