Elderlaw Advocates August 1, 2019
Dear Len & Rosie,
My father died of a heart attack at the age of 52. He was in the process of getting divorced from his second wife, Meg. During their two-year marriage, Meg completely ignored him and was interested only in his money. My father knew heíd made a mistake. He reassured me that he would see to it that his property would go to me and my sister, not Meg. Last week she called and asked if I would send her a copy of my fatherís will. She said her attorney wanted to have a look at it. So far, I havenít found a will. Iím not sure what to tell her. I thought she was entitled to nothing because she and my father were legally separated. Do I have a problem?
You could have a big problem if your father died without a will or trust. When that happens, itís called dying intestate, and his estate will pass to his legal heirs by intestate succession. Meg, as the surviving spouse, would inherit all of your fatherís community property and one-third of his separate property. You and your sister will inherit the rest. It doesnít matter that Meg and your father were legally separated; they were still married for estate purposes because the divorce was not final.
Megís attorney probably explained to her that, if your father had no will or trust, she would inherit as his surviving spouse Ė and would likely receive a lot more than she would have gotten from the divorce. And even if your father had a will or trust, if it was executed before he married Meg and makes no mention of her, she is still entitled to an intestate share of his estate as an ďomitted spouse.Ē Thatís why itís very important to update your estate plan when you get married or if you file for divorce.
Itís possible that your father and Meg had a prenuptial agreement in which each of them waived their rights to the otherís estate. In many second marriages where there are children from a prior marriage, a prenuptial agreement is a great idea and can save a lot of grief and misunderstanding down the road. They may not be very romantic, but they can help protect a childís inheritance.
Contact your fatherís divorce attorney and your fatherís friends. Find out if he ever visited an estate planning attorney. If he did, call that attorney; he or she will have a record of the visit and the documents that were prepared. Hopefully, you will find something. If not, you will learn the hard way that your fatherís good intentions donít count because they werenít in writing.
Len & Rosie
Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.