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california inheritance concerns

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S

sickwithsadness

Guest
We have two children from marriage. H is also paying child support for child he fathered out of wedlock. Child support payments are obligated through age 18. As his wife, I want to protect our assets we accumulated in our marriage and for our children . What is the best way to do this? Should all our joint assets be divided and made separate ones-i.e home listed in only my name, savings and checking accounts put in my name and some in his, etc. to protect what legal rights the out of wedlock child would have to father's (my husband's) assets in terms of inheritance rights? Can we have husband have will naming me as sole person who inherits our assets should he die and not give anything to our children or this child? What is your best advice? How about whether I would be obligated to pay child support payments for this child if husband died prior to child reaching age of 18? HOw can I protect our estate from being torn apart if husband died prior to age 18? Can the child's mother then seek inheritance rights to force me to make child support payments for this child that is not related to me? Please advise.
 


ALawyer

Senior Member
The out of wedlock child is as much a child and would be as much an heir at law of his estate as an in wedlock child.

He also has an obligation to support that child, just as he and you have an obligation to support the 2 children your both brought into the world.

If he has no Will, all 3 children would be entitled to a portion of the estate as heirs at law.

My understanding is that the obligation to support a child ends at death. (That may be a misunderstanding, so check it.)

But heirs at law can be EXCLUDED from the Will -- for example if a person has 3 children he can decide child 1 and 3 get nothing, and if in his Will he names them and says that everything goes to child 2 it would be perfectly proper assuming the Will itself was valid -- properly signed, witnesed, while of sound mind, etc.

He needs a Will. NOW. In that Will he should name those who he wants to be his beneiciaries. And while I understand how you may resent the fact that he had a child with another woman, and the money he pays to support that child that cuts into your household income, please understand that being resentful does not make you a better person only a bitter person.

ALSO, if he is in good health, may I suggest he buy a decent sized chunk of TERM life insurance -- it is VERY inexpensive to get 10 year term for those in good health looking at the www.Quickquote.com site I saw a 36 year old male, non-smoker, with no adverse heath history could get $500,000 of term life for only $200 per year from about 5 companies with premiums paid annually. If his health was not so good or he was overweight, had a bad family history, smoked, etc. it would cost more, but it still makes sense, even for a lesser amount of insurance.

If your husband died in the next 10 years that could provide enough money to meet his moral obligations to all 3 children, and you. And consider getting some yourself as if YOU were to die (yes, it happens) he'd have a need to have your kids cared for.
 
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VeronicaGia

Senior Member
to ALawyer

In the situation above, would a living revocable trust, which becomes irrevocable upon death, with a pour-over will, be a better solution?

Thanks for the tip on term life insurance!
 

I AM ALWAYS LIABLE

Senior Member
ALawyer said:
ALawyer said: "My understanding is that the obligation to support a child ends at death. (That may be a misunderstanding, so check it.)"
My response:

Yes, ALawyer, it is your "misunderstanding" of the current state of the law. Court-ordered child support survives the death of the noncustodial parent and becomes a charge upon his or her estate. [Taylor v George (1949) 34 Cal 2d 552, 212 P2d 505]

Similarly, there is no legal or policy reason to terminate a child support order when a custodial parent dies and the noncustodial parent does not assume custody. A child’s need for support does not terminate when the custodial parent dies, and persons who assume the financial burden of caring for a child following the death of the custodial parent should not be forced to expend their resources to enforce an existing support obligation. If the noncustodial parent believes that modification or termination of the support obligation is justified, he or she must resort to the court. [In re Marriage of Gregory (1991, 1st Dist) 230 Cal App 3d 112, 281 Cal Rptr 188]

IAAL
 

VeronicaGia

Senior Member
IAAL

As you are a practicing attorney in CA, how many times have you seen this happen? Is it the norm, or is it something that the courts MAY do?

Thank you in advance for your response.
 

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