Dear Len and Rosie,
My friend’s husband died three months ago. She and her husband recently married, but had lived together for 30 years. He owned the house in his name alone. Unfortunately there was no will. He has a daughter from a previous marriage who is trying to take the house. Additionally, she’s been told that she’s not entitled to his Social Security. Is there anything she can do to keep the house? I just can’t believe his daughter is entitled to take something that was never hers.
Your friend’s husband died without a will. That means his home and everything else in his estate shall pass by intestate succession—the word “intestate” means “no testament” as in “Last Will & Testament.” Intestate succession is the California Legislature’s best guess as to how most people would want their assets distributed when they die. It’s a shame our government declined to disinherit wicked daughters from prior marriages.
Your friend inherits all of the community property, but there isn’t any if they were already retired when they got married. She will also inherit either one-half of his separate property, if her husband had only the one daughter, or one-third of the separate property if he had more than one child. At best, she’ll own only half of the home.
Your friends could have avoided this if only they had made wills leaving everything to one another, assuming that’s what they wanted. If he had wanted to protect his daughter too, he could have created a trust that gave his wife the right to live in the home until her death. But it’s too late for that. The best your friend can do now is to make a deal with her husband’s daughter. Maybe she’ll be willing to forgo selling the home now in return for inheriting the entire property upon her step-mother’s death.
As for Social Security, the rule is that you have to be married for one year for a surviving spouse to collect a pension off of the deceased spouse’s earnings record. If your friend’s husband died before their first anniversary, there’s nothing that can be done.
We hate to be the bearers of such bad tidings but we do so in the hope that readers of this column will take note. Everyone wants to save money, but with regards to estate planning, saving money in the short term frequently costs more money and creates more problems in the long term.
Getting married or divorced is always a reason to consult with an estate planning attorney to make sure that your affairs are in order. If your friend and her husband had done that, she wouldn’t be in such trouble today.
Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505.
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