A potential client was looking for help with Probate. Her husband had died suddenly, unexpectedly and without a Will. The couple was the perfect example of a blended family, where husband and wife lived together, both having and living with children from previous marriages.
Having been married when her husband died, the wife expected to inherit shared assets including the house. Many people coming to our office assume everything will automatically transfer to their spouse. Unfortunately that wasn’t meant to be.
California law dictated that in cases where children were involved, and in the absence of a current or properly drafted Will, the surviving spouse was intended to receive no more than 50%, and no less than one-third of the assets.
To better explain, let’s say there was only one child. In that case, the wife and the child would split the assets 50/50. However, if there were two children or more, the law stated the wife could not receive less than one-third.
What that meant for the wife was that she now only owned one-third of her own house. The other two-thirds had to be immediately split among the husband’s children, and immediately split meant selling the house the wife loved, and hoped to remain in until she died.
If the husband had a current and properly drafted Will prior to dying, he could have left the house to the wife if he so wished. Sadly, he didn’t, and his wife was served a notice of eviction.
An attorney’s responsibility is to bestow knowledge, guide us, offer suggestions and advice and provide us options if there are any. Yet, sometimes the best they can do is to tell us how it is and why it is that way. This situation was one of those sad cases because of a misunderstanding of the law. But even in a situation such as this, the family could have found some small comfort had there been a properly drafted Will.
