Exclude Husband From Will?

[StaticXCC]

What is the name of your state? California

This is a long twist of a tale... and at this point I really think I need some advice. I'll give some backstory but for the most part I'm sticking to as found things out from my point of view.

About me first, I'm 25 living here in California. My Aunt invited me out here from Oklahoma for job opertunities. I actually did allright, I think I went from around 18k a year in oklahoma to 63k in California. Now, my aunt married in florida roughly 20 years ago to her current husband. during the first 10 years of this marriage, he mistreated her verbally, and was a giagantic money leech. so much a money leech in fact that he drove her into bankruptcy. She made the money, he spent it. Sometimes he would work, but he could never hold a job for long. She moved to California to flee from him. I did not know any of this when I moved out to live with her here in California.

When I moved out here, things were fine for the first year. I found out she had a boyfriend of 10 years out here in california, of which he has been living with her for 5 years rent free. (so to recap, this is about 10 years living with husband, 10ish years dating new boyfriend) During the first year I was out here, she asked him to move out due to the declining relationship. He did not make much effort to move. Then in november of 2006, my aunt has me take her to the emergency room due to a "female" problem. It was there that she was diagnosed with Cancer. It was a rare form of cancer called Burkitts Lymphoma. This cancer is EXTEREMLY aggressive and fast acting. I continued to work for a few months, but the medical offices visits and such became to great that I stopped work to become a full time care giver. During this period I did not qualify for government help, because I was not her child. I'm her newphew. So for roughly a year, I did medical research, I took her to the doctors, I provided food. I basiclly drained my entire savings and all my money trying to save her and do whatever I could. During this period my aunt asked her boyfriend living wish us to move out again. He did not. It is also during this period where I was being a caregiver that I found more about her husband and the info I now know is in the first paragraph. As I have been told, In her office where she worked, there was papers about divorce. She had apparently signed all of them but they were all missing her husbands signature. She told me that she didn't initially divorce her husband 10 years ago because she didn't want to give him any more of her money (keep in mind his spending her money forced her into bankruptcy).

In november the cancer won. She had 2 tumors in her spine, one in her brain. She passed away almost the very same day last year that she was diagnosed with cancer, so she fought it for a year. In her will, she set up the distrubution, and made a special mention of me. She felt that all I had done for her was above and beyond anything anybody could have expected, and as such she wanted to compensate me. As such, in her will after the 401k's and other specifically named possesions were distributed, I would get half of the remainder of the value of the selling her estate, her niece getting the other half. I was also named to recieve all her computer equipment and it's various accessories. Further to note, in her will she EXCLUDED her husband from getting anything, and said the 401k's should go to her brother.

Now to current matters. Her husband has shown up, and the first words to the lawyers mouth was that he was still married to my aunt, and requested a copy of the will. From what I know about 401k's, as the husband, he may get that over her brother anyway (which is a crying shame). As we are aware of how he drove her into bankruptcy before, we are also afraid he is going to contest the validity of the will and try to take her entire estate. She put a clause in the will that anybody that contests the will would be excluded. Since she excluded him on the first line of the will, I figure he doesn't have anything to lose on fighting the will anyway.

The other matter is the boyfriend here in california. He basicly has been refusing to pay any sort of rent and keeps delaying moving out. He has boxed up a number of things that are even mine. I paid for them, or I brought them with me when I moved out here 2 years ago. He keeps claiming that he bought them for my aunt. Same with other items that we've identified as being a part of her now deceased mother. My aunt said that such family things go to her brother and his wife.

So this is the point that I am at now. On one side, I have a potentinal husband that is very likely going to fight tooth and nail to get everything he possibly can, on the other a boyfriend that seems to claim stuff is his that it actually isn't. If this turns into a giant legal battle, I'm really scared the fight could drive me into bankruptcy (as well as the family) and/or I lose things that are even mine to begin with. My aunt did work at a lawfirm, and the firm agreed to pay $5,000 in legal fee's, but that is getting sucked up FAST. My parents have given me about $18k to hold me over, but again, if this turns into a legal battle then that'll be gone and my inheritence possibly totally gone. I honestly feel like I'm being legally robbed. help?

[las365]

I'm sorry for your loss. It sounds like your aunt was fortunate to have you there to care for her.

Who is the Executor of her Estate? That is who would have the authority to evict the boyfriend.

Not to be callous, but you need to get back into the workforce and support yourself while you wait for your inheritance ship to sail into port. It sounds like this could take a while.

[StaticXCC]

Originally Posted by las365

I'm sorry for your loss. It sounds like your aunt was fortunate to have you there to care for her.

Who is the Executor of her Estate? That is who would have the authority to evict the boyfriend.

Not to be callous, but you need to get back into the workforce and support yourself while you wait for your inheritance ship to sail into port. It sounds like this could take a while.

I am already working on getting re-employed. tomorrow I plan to file for un-employment until I can get work again. I was denied this before because I wasn't seeking work as a full time care giver. I suspect as the situation has changed that I will be approved this time.

The executor is a friend of my aunts that also works at the same law firm as the CFO. She has been made aware of our issues with the boyfriend, and is looking about how to go about the eviction process.

[Ohiogal]

And the husband can take his portion of the will. He has that right. HE is her husband. If she wanted to exclude him she should have divorced.

[xylene]

Originally Posted by Ohiogal

And the husband can take his portion of the will. He has that right. HE is her husband. If she wanted to exclude him she should have divorced.

Why do you conclude that her exclusion of her husband in the will was not valid?

[Ohiogal]

Originally Posted by xylene

Why do you conclude that her exclusion of her husband in the will was not valid?

From a California Law firm:

In almost every state, a surviving spouse has the legal right to a share of a decedent's estate regardless of what the will says. This right of election is specified under state statute. The statutory share is typically one-third of the probate estate of the decedent. One reason to consider an election against the will is that it may give the surviving spouse a larger portion of the estate than she would receive under the will. A larger portion of the estate translates into a larger marital deduction, which means lower federal estate taxes.


This right to "elect or take against the will" is generally easy to exercise. There is no need to contest the will or to show any fraud, duress, undue influence, or improper execution. It is necessary to file a written election with the local probate court. Election must be made within the time specified under local law - typically, six months after the public announcement of the appointment of the estate's executor or within one year of death. Failure to file the election within the prescribed period results in permanent loss of the surviving spouse's right to take against the will. In some states, children have a similar right, determined by statute, to a share of a decedent's estate, regardless of what the will provides.

And read the California probate code:
[url]http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=prob&codebody=&hits=20[/url]
It allows for spouses to take against a will UNLESS the spouse has signed a waiver stating that they will not and provides OTHER necessary items for said item.

If she wanted to disinherit her HUSBAND she should have DIVORCED him. Not doing so allows him to take against the will.

[BoredAtty]

Originally Posted by Ohiogal

From a California Law firm:


And read the California probate code:
[url]http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=prob&codebody=&hits=20[/url]
It allows for spouses to take against a will UNLESS the spouse has signed a waiver stating that they will not and provides OTHER necessary items for said item.

If she wanted to disinherit her HUSBAND she should have DIVORCED him. Not doing so allows him to take against the will.

I may have missed something, but from my reading of the statute, it appears that if a spouse is intentionally omitted from a will (as is the case here), then that spouse is not entitled to an elective share of the estate.

21611. The spouse shall not receive a share of the estate under
Section 21610 if any of the following is established:
(a) The decedent's failure to provide for the spouse in the
decedent's testamentary instruments was intentional and that
intention appears from the testamentary instruments.

[xylene]

Originally Posted by BoredAtty

I may have missed something, but from my reading of the statute, it appears that if a spouse is intentionally omitted from a will (as is the case here), then that spouse is not entitled to an elective share of the estate.

21611. The spouse shall not receive a share of the estate under
Section 21610 if any of the following is established:
(a) The decedent's failure to provide for the spouse in the
decedent's testamentary instruments was intentional and that
intention appears from the testamentary instruments.

That was my line of thinking also.

[happybug]

" 21611. The spouse shall not receive a share of the estate under
Section 21610 if any of the following is established:
(a) The decedent's failure to provide for the spouse in the
decedent's testamentary instruments was intentional and that
intention appears from the testamentary instruments. "

How can that make sense? CA is 100% a community property state. How can a person exclude a spouse from their will when 1/2 of the assets would belong to the spouse already? I could be wrong but I can't see how a spouse could be excluded in a will in a community property state?

[Ohiogal]

We also do not know exactly how the exclusion was phrased. We have OPs interpretation of it.

[BoredAtty]

Originally Posted by happybug

" 21611. The spouse shall not receive a share of the estate under
Section 21610 if any of the following is established:
(a) The decedent's failure to provide for the spouse in the
decedent's testamentary instruments was intentional and that
intention appears from the testamentary instruments. "

How can that make sense? CA is 100% a community property state. How can a person exclude a spouse from their will when 1/2 of the assets would belong to the spouse already? I could be wrong but I can't see how a spouse could be excluded in a will in a community property state?

770. (a) Separate property of a married person includes all of the
following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift,
bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in
this section.
(b) A married person may, without the consent of the person's
spouse, convey the person's separate property.

771. (a) The earnings and accumulations of a spouse and the minor
children living with, or in the custody of, the spouse, while living
separate and apart from the other spouse, are the separate property
of the spouse.

[StaticXCC]

I will see if I can get an exact reading of the exclusion for you all. however to reinstate, my aunt was in california, the husband is in florida, and they were married in oklahoma. I don't know if that changes anything. He contributed and paid for 0% of everything while she was in California. she recovered from bankruptcy out here.

[xylene]

Originally Posted by Ohiogal

We also do not know exactly how the exclusion was phrased. We have OPs interpretation of it.

That's a question of the validity of the exclusion / will, which the OP states is being challenged anyway.

That's a very different line of reasoning than asserting that is is impossible for the husband to be excluded.

Do you have a reason to believe the exclusion is not valid? What would be an example of something that makes it invalid? Does it have to do with the exact words that were written and/or the state of mind of Auntie at the time?

[Ohiogal]

Originally Posted by xylene

That's a question of the validity of the exclusion / will, which the OP states is being challenged anyway.

That's a very different line of reasoning than asserting that is is impossible for the husband to be excluded.

Do you have a reason to believe the exclusion is not valid? What would be an example of something that makes it invalid? Does it have to do with the exact words that were written and/or the state of mind of Auntie at the time?

Exclusions must be very specifically written in order to be valid. I avoid writing wills for that reason. It has to do with the wording and the state of mind of Auntie.