What are the legal rights of a surviving spouse to the deceased spouse’s assets where the decedent spouse leaves the bulk of his/her estate to a child from a prior marriage?
California is a community property state. Many people are confused about what constitutes community property. Basically, community property is everything a married couple acquires as a result of their labors commencing with the date of marriage. Community property does not include many things, such as separate property owned by one spouse prior to the marriage, gifts and inheritance received by one spouse before or during the marriage, and personal injury awards.
A decedent has the legal right to dispose of their separate property and their share of the community property however they chose, including disinheriting their spouse and leaving those assets to someone else, such as children by a prior marriage. But that is not the final answer. First, you must determine what is separate versus community property.
If there is a marital agreement (post-nuptial or prenuptial), that agreement will likely define the rights of the spouses to the assets. Absent such an agreement, the rights of the parties will be controlled by state law. For instance, Husband (“H”) and Wife (“W”) get married and do not sign a marital agreement, and H owns a business as his separate property at the time of the marriage.
Thereafter W works closely with H in the conduct of that business. It is likely to be found factually that the business has been converted (at least in part) to community property so that H can’t dispose of the community property interest acquired by W after the marriage, only his share.
Or, using the same example, assume H owned a home as his sole and separate property at the time of his marriage to W, but after the marriage, H and W used their combined earnings (community property) to make the mortgage payments. Upon H’s death, the home is likely to be found to be a commingled asset, partially owned by H as his separate property and partial owned by H and W as their community property.
There are lots of these types of questions to be asked.
In addition, the surviving spouse might have a claim against the estate of the decedent based upon financial need. In that event, a probate court proceeding can be brought to enforce a homestead right (the right to support) on behalf of the survivor which would become a debt of the decedent’s estate to be paid from the decedent’s trust assets.
The bottom line is: A surviving spouse may have substantial rights which are not properly addressed by the deceased spouse’s estate plan. You would need to discuss the details of your marriage with competent legal counsel to determine what your rights are and how to best pursue those rights. You should also be concerned with the possibility that bringing any action to pursue those “rights” may violate the terms of any “no contest clause” contained in the estate plan which could possibly result in you losing any right to inherit, including anything left to you. Therefore, you should approach this very carefully.
- 2024 Federal Estate and Gift Tax Update (VIDEO) - November 16, 2023
- National Long-Term Care Awareness Month (VIDEO) - November 13, 2023
- Proposition 19 and Repeal the Death Tax Act (VIDEO) - November 3, 2023