Intestate Succession hazards

 Intestate Succession


Dealing with the death of a loved one is often traumatic at worst, emotionally draining at best. This process is, however, exponentially more difficult when a person dies without a will, or “intestate”. Real property is particularly difficult to distribute without knowing the intent of the deceased. We may think we know, but if the deceased did not write it down, it will pass by the laws of “Intestate Succession” which means the State of California will instead tell the family how the property is to be divided. The more complex families are, the more complications there can be. Consider the following:


Intestate Succession - Ramifications


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The Spouse’s Share in California
In California, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property – as separate property or community property. Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are some exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage. The size of your spouse’s share of your separate property depends on whether or not you have living parents, children, or siblings. If you do, your spouse will share your separate property with them in a priority of order, children first, parents second, siblings third and so on.

Assume a blended family:
H has a separate property home and 4 now adult children by a prior marriage. Together, H & W have 1 child. If there is no will when H dies, his community property and 1/3 his separate property goes to his Wife. His 5 children divide the other 2/3 of his separate property! W is now in ownership of the residence with her own child and H’s children from a prior marriage. Typically not a great place to be.

Oh, an just to add to the mix, if you and your spouse are legally separated — but not yet divorced, meaning no entry of final judgment on the dissolution — when you die without a will, your nearly ex-spouse will be entitled to your property. Don’t leave that task undone. In California, the rules for married people also apply to registered domestic partners.

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