Omitted Spouse and Probate

[4luc929]

California.
A decedent didn’t update his will after divorce. Under the Probate Code 21610 dealing with omitted spouses the surviving spouse entitled to all the community property and half of SP. The house is 90% SP. The surviving spouse has a letter written by the decedent where he said, “The house is our home and not my house. I want you to feel that you are part of everything”.
Will the court consider this statement as sufficient evidence of his intention to change the nature of the separate property to the community property?
The second beneficiary was appointed as an executor by the court. Should surviving spouse file a Petition to determine the status of the omitted spouse?

 

[advisor10]

SEPT. 17, 2001

DEAR 4LUC:

There are some other questions that need to be answered in consideration of your situation:

(1) How many children (if any) does the decedent have? This could have an effect on how much each spouse gets.

(2) How many times has this man been married--only twice or more?

(3) Whose name is shown on the title/deed of the home?

It is not likely that the letter would be sufficient evidence of his intention to change separate property to community property--it is how the law is written that will determine this aspect.

Surviving spouse may not need to file a petition to determine the status of omitted spouse unless she just wants to do it for her own reasons. Determining all valid heirs should be performed by the executor or attorneys for the executor or surviving spouse, unless you have reason to believe that the omitted spouse might not find out about her share of the estate unless someone notifies her about it.

SINCERELY,

[email protected]

 

[4luc929]

Dear Knort,
Thank you for your reply.
1. The decedent didn't have any children or parents. His brother and sister think that everything should inherit his surviving spouse.
2. The decedent had only one ex-wife. By the law of CA she is revoked from the will and cannot be an executor.
3. Only the decedent's name is on the title of the house.

In CA prior to January 1985 a change in the nature of property could be made by informal oral agreement . Since January 1, 1985 a change in the nature of property must be made in writing, signed by the person whose property is affected.

Regards.
4luc