Omitted Spouse of 15+ years, 50% or 33.3%?

[jayarea]

CALIFORNIA

Hello,

Helping out a family member here (Spouse of deceased) that is on the fence to petition court to become executor of her late husband and then enter the estate into probate.

Some details:

• There was a will, but it pre-dated their 15+ year marriage.
• Estate has limited assets other than mobile home (placed in a rented-space park) (value ~$110k) AND
• Estate received inheritance (~80k cash) from the deceased husbands relative (deceased husband survived the relative long enough to be eligible for distribution)
• The mobile home was owned by the husband prior to marriage. It was paid off, space rental fees paid, and maintained from earnings from husbands job during course of marriage.
• Back to the will... the will names 4 of the deceased husbands children from previous marriages, and it distributes to these children in two separate tiers:
  • 1. If Child A & B are alive, then A & B split 100% of the estate 50/50.
  • 2. If only A or B are alive, than the surviving of A & B receive 100%.
  • 3. If BOTH A & B are dead, then children C & D split 100% of the estate 50/50
  • 4. If Only C or D are alive, then the surviving of C & D receive 100%
• We are currently at #2 -- where child A had passed prior to the father/husband. So Child B would be entitled to 100% of estate if there was no spouse/California, etc.

The will names priority for executorship as:

• Child A, if child A is deceased (and they are) then Child B shall be executor.

In our case, the Spouse wishes to be executor.

- So first question is would she have next priority after the will-named priority of Child A over Child B who is second-in-line to be executor in the will?

- Next question is regarding California treating will as intestate for omitted spouse. In this case, there are 3 children still living, but only 1, per the will, is entitled to share (100%) of estate. So would that mean that spouse would be entitled to 50% sharing with "one child" or only 33.3% sharing with "2 or more children" ?

- Final question is about the real property. This was the "home" husband and wife lived together for past 15 years. Wife continues to live there. As mentioned previously the mobile home existed prior to the marriage and was titled in husbands name only (assume separate property) but maintenance, upkeep, registration (rather than property taxes... I guess mobile home is more car than house) and possibly early on some of the final "mortgage" or loan payments were made from deceased husbands job which they both survived on. In addition wife would contribute from her social security but this was only by cash between husband/wife so no formal records of that. So question is what are the odds that this mobile home property could be transformed to be designated as community property belonging 100% to spouse?

Trying to help a bit here because initially the surviving children of her spouse told her she was entitled to nothing and don't worry she could still stay in the mobile home for awhile. The woman is about 70 years old...not a nice thing to do.

Thank you for your suggestions and feedback.


UPDATE: When I say "omitted" I don't mean named and excluded, but rather the will existed prior to the marriage and was never updated to include spouse.

 

[Zigner]

An attorney's involvement is important. An internet forum isn't the right place to go for help.

 

[FlyingRon]

Understand the will only deals with the assets that are part of the deceased's estate. The community property they held goes to the surviving spouse before they even start to be concerned about what the will states.

There's no such thing as "being paid by a husband's salary" in a California marriage. All the assets and liabilities are community property. It sounds very much like the home is indeed community property. The inheritance would not be community property.

 

[not2cleverRed]

BTW, income earned during the marriage is marital income, so the funds used during the marriage to upkeep the home were marital, not separate.

Ron types faster.

 

[not2cleverRed]

CA Probate Code CHAPTER 2. Omitted Spouses [21610 - 21612]

CHAPTER 2. Omitted Spouses [21610 - 21612]
21610
Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate, consisting of the following property in said estate:

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

(b) The one-half of the quasi-community property that belongs to the decedent under Section 101.

(c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate.

In other words, it is assumed that the omission was unintentional, due to the decedent not updating their will.

 

[FlyingRon]

Yes, and to amplify on what that says. The spouse gets all the community and quasi-community property. The spouse gets a third of the remaining separate property since there appear to be two children (or their descendants). The will then applies to how the rest gets distributed.

 

[Dandy Don]

Why does this spouse want to be executor? The pay is minimal.

Did this decedent's former wife die prior to this decedent's will being written?
Did the decedent have (or not have) the assistance of an attorney when drafting this will?

The children made an error by telling this spouse that she "was entitled to nothing" and it appears they are not yet familiar with California law that provides a surviving spouse with a certain portion of the husband's estate. Perhaps the decedent was also not aware of this when the will was written.

This lady can either take a wait-and-see attitude to wait for the probate process to play out and see whether the executor and heirs are going to give her what she is rightfully entitled to by law, or she should consult with a probate attorney to get her questions answered and perhaps retain the services of the attorney to represent her in this matter to ENSURE that she gets her rightful share.

 

[FlyingRon]

Why does this spouse want to be executor? The pay is minimal.

Doubtful she is in it for the executor fee, but rather to make sure the estate is settled properly (at least from her point of view).

Did this decedent's former wife die prior to this decedent's will being written?

What former wife?

Did the decedent have (or not have) the assistance of an attorney when drafting this will?

Neither here nor there at this point. The problem is not that the will was ill-drafted at the time, but never revised when he married.

Perhaps the decedent was also not aware of this when the will was written.

Why would he have cared at that point? He was not married.

This lady can either take a wait-and-see attitude to wait for the probate process to play out and see whether the executor ...

BZZT... bad idea.

she should consult with a probate attorney to get her questions answered and perhaps retain the services of the attorney to represent her in this matter to ENSURE that she gets her rightful share.

Now you're talking.