Not on wifes will

[Saskatoon]

What is the name of your state? California
Long story short, the wife, of 15 years, went and had a will made without me knowing about it. Found a copy of it and my name only appears as her husband and that is it. She is leaving everything to her 3 children, including the house, to all 3 of them. She had the house when we were married but refinanced twice since we have been married. I pay the majority of the bills, most in my name and do most of the repairs, she just pays the mortgage payment. I did replace the roof shingles about 8 years ago. I know one of her children would kick me out to the street so she could move in ASAP. Do I have any recourse if something was to happen to her and had no place to live?
Believe me, I am thought of just getting a divorce just to have the house divided and get even with her.

 

[Zigner]

You are entitled to your share of the community property, which would seem to include the appreciation in the value of the house from the time you married until now.

I would suggest that you consult with a divorce attorney NOW, since you are so bitter with her.

 

[Ohiogal]

Educate yourself:

6401. Intestate share of surviving spouse

(a)	As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100.

(b)	As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101.

(c)

As to separate property, the intestate share of the surviving spouse is as follows: (1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister. (2) One-half of the intestate estate in the following cases: (A) Where the decedent leaves only one child or the issue of one deceased child. (B) Where the decedent leaves no issue, but leaves a parent or parents or their issue or the issue of either of them. (3) One-third of the intestate estate in the following cases: (A) Where the decedent leaves more than one child. (B) Where the decedent leaves one child and the issue of one or more deceased children. (C) Where the decedent leaves issue of two or more deceased children.

Cite as Ca. Prob. Code § 6401


History. Amended by Stats 2014 ch 913 ( AB 2747), s 32, eff. 1/1/2015.


Amended by Stats 2002 ch 447 ( AB 2216), s 1, eff. 7/1/2003.

§ 6101. Property disposed of by will

A will may dispose of the following property:

(a)	The testator's separate property.

(b)	The one-half of the community property that belongs to the testator under Section 100.

(c)	The one-half of the testator's quasi-community property that belongs to the testator under Section 101.

Cite as Ca. Prob. Code § 6101

§ 141. Generally

(a)

The right of a surviving spouse to any of the following may be waived in whole or in part by a waiver under this chapter: (1) Property that would pass from the decedent by intestate succession. (2) Property that would pass from the decedent by testamentary disposition in a will executed before the waiver. (3) A probate homestead. (4) The right to have exempt property set aside. (5) Family allowance. (6) The right to have an estate set aside under Chapter 6 (commencing with Section 6600) of Part 3 of Division 6. (7) The right to elect to take community or quasi-community property against the decedent's will. (8) The right to take the statutory share of an omitted spouse. (9) The right to be appointed as the personal representative of the decedent's estate. (10) An interest in property that is the subject of a nonprobate transfer on death under Part 1 (commencing with Section 5000) of Division 5.

(b)

Nothing in this chapter affects or limits the waiver or manner of waiver of rights other than those referred to in subdivision (a), including, but not limited to, the right to property that would pass from the decedent to the surviving spouse by nonprobate transfer upon the death of the decedent, such as the survivorship interest under a joint tenancy, a Totten trust account, or a pay-on-death account.

 

[Ohiogal]

Also:

§ 6500. Entitled to posession of family dwelling, wearing apparel, household furniture, etc

Until the inventory is filed and for a period of 60 days thereafter, or for such other period as may be ordered by the court for good cause on petition therefor, the decedent's surviving spouse and minor children are entitled to remain in possession of the family dwelling, the wearing apparel of the family, the household furniture, and the other property of the decedent exempt from enforcement of a money judgment.


Cite as Ca. Prob. Code § 6500

§ 6540. Persons entitled to allowance; persons who may be given allowance

(a)

The following are entitled to such reasonable family allowance out of the estate as is necessary for their maintenance according to their circumstances during administration of the estate: (1) The surviving spouse of the decedent. (2) Minor children of the decedent. (3) Adult children of the decedent who are physically or mentally incapacitated from earning a living and were actually dependent in whole or in part upon the decedent for support.

(b)

The following may be given such reasonable family allowance out of the estate as the court in its discretion determines is necessary for their maintenance according to their circumstances during administration of the estate: (1) Other adult children of the decedent who were actually dependent in whole or in part upon the decedent for support. (2) A parent of the decedent who was actually dependent in whole or in part upon the decedent for support.

(c)	If a person otherwise eligible for family allowance has a reasonable maintenance from other sources and there are one or more other persons entitled to a family allowance, the family allowance shall be granted only to those who do not have a reasonable maintenance from other sources.

Cite as Ca. Prob. Code § 6540

 

[not2cleverRed]

What is the name of your state? California
Long story short, the wife, of 15 years, went and had a will made without me knowing about it. Found a copy of it and my name only appears as her husband and that is it. She is leaving everything to her 3 children, including the house, to all 3 of them. She had the house when we were married but refinanced twice since we have been married. I pay the majority of the bills, most in my name and do most of the repairs, she just pays the mortgage payment. I did replace the roof shingles about 8 years ago. I know one of her children would kick me out to the street so she could move in ASAP. Do I have any recourse if something was to happen to her and had no place to live?
Believe me, I am thought of just getting a divorce just to have the house divided and get even with her.

You are in California.

You have been married over 10 years. This is a long term marriage.

While a spouse can be disinherited in California, there are rules that have to be followed. She has not followed them. I do not think her will is valid.

The house in its entirety is not hers to give: it has been comingled. The equity accrued during the marriage is a marital asset.

But here's the thing: as a couple you two should be planning these things together. Do you yourself have a will? If not, approach your wife and say that you want to discuss long term planning, including wills, and end of life plans - under what circumstances you want a DNR, whether you are willing to be an organ donor, buried or cremated. You can choose whether to bring up her recent will - you know her better than us, but maybe she'll be more understanding if she realizes how betrayed you feel.

However, if your wife is not willing to discuss this with you, and is adamant that she wants it all to go to her kids, then yes, divorce does sound like a reasonable option.

 

[LdiJ]

What is the name of your state? California
Long story short, the wife, of 15 years, went and had a will made without me knowing about it. Found a copy of it and my name only appears as her husband and that is it. She is leaving everything to her 3 children, including the house, to all 3 of them. She had the house when we were married but refinanced twice since we have been married. I pay the majority of the bills, most in my name and do most of the repairs, she just pays the mortgage payment. I did replace the roof shingles about 8 years ago. I know one of her children would kick me out to the street so she could move in ASAP. Do I have any recourse if something was to happen to her and had no place to live?
Believe me, I am thought of just getting a divorce just to have the house divided and get even with her.

If you really want a divorce then by all means get a divorce, but don't get a divorce to "get even". Get a divorce because you believe that the marriage is truly over.

 

[Taxing Matters]

I do not think her will is valid.

The will is likely valid, assuming it was properly witnessed. But it only can give away her separate property and her share of community property. Moreover, the surviving spouse has certain rights notwithstanding the will, too. The OP isn't going to be left with nothing if she dropped dead today.

 

[adjusterjack]

Do I have any recourse if something was to happen to her and had no place to live?

Of course you do. But you have to understand the difference between ownership and marital interest. If she is still the only name on the deed then she owns the house and she can do what she pleases with it.

What you have is a right to be compensated for the increase in equity that accrued during the marriage. The house doesn't get divided, the monetary value does. It might have to be sold to pay you. Or it might not if there are other assets that can be awarded to you instead.

 

[Litigator22]

. . . What you have is a right to be compensated for the increase in equity that accrued during the marriage. . . .

Please explain what you mean by "increase in equity"? Do you mean "equity" in terms of the reduction of the principal amount of the mortgage indebtedness? Or enhanced equity attributable to market forces? Or both?

 

[TrustUser]

boy, this site is a common reminder as to why a person should bypass on the concept of a legal marriage !!

it is just a bunch of rules about how one person can confiscate assets from another person

 

[Zigner]

boy, this site is a common reminder as to why a person should bypass on the concept of a legal marriage !!

it is just a bunch of rules about how one person can confiscate assets from another person

What a ridiculous sentiment.

 

[TrustUser]

not ridiculous, at all. just the truth. it is all just about property rights, and who gets what, etc. etc.

 

[PayrollHRGuy]

not ridiculous, at all. just the truth. it is all just about property rights, and who gets what, etc. etc.

Well, if they weren't married the OP might not have any rights at all.

 

[Zigner]

not ridiculous, at all. just the truth. it is all just about property rights, and who gets what, etc. etc.

It has nothing to do with "confiscating assets from another person" (which implies that the person has no vesting in said assets).

 

[TrustUser]

you will argue about something, even when wrong, until the cows come home

there is nothing about legal marriage that involves love, or any of the things that is touted in our society

it is simply a property contract - my last post on the subject