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Elderlaw: 09/15/2016

Elderlaw Advocates

Dear Len & 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, my friend has 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.


Dear Debbie,

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 he was 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.

The only way your friend would be entitled to more than that is if she could prove that her husband promised to leave her everything, or at least the home, and that there’s a written contract or she acted to her own detriment in reliance of her husband’s promises. Please understand that this is a Hail Mary pass and isn’t likely to succeed unless she has a lot of evidence in her favor.

Your friends could have avoided this if they had only made wills leaving everything to one another. They could have even made wills for free by downloading the California Statutory Will form from the California State Bar Association at 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 earning 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 regard 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 & 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 Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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