Getting married or divorced is always a reason to consult with an estate planning attorney to make sure that your affairs are in order

Dear Len & Rosie,

My friend’s husband passed away three months ago. She and her husband got married only recently, 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 she’s not entitled to her husband’s Social Security. Is there anything I can do so that she can keep the house? I just can’t believe his daughter is entitled to take something that was never hers.

Debbie

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 -“intestate” means “no testament” as in “Last Will & Testament.” Intestate succession is the default estate plan created by the California Legislature. It’s their 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 will inherit all of the community property, but there probably isn’t any, as her husband was probably 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. So at best she will own half 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 friend’s husband could have avoided this problem by making a will, and he could have even done it for free by downloading the California Statutory Will form from the State Bar web page at www.calbar.ca.gov.  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 a couple has to be married for at least 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. Nobody wants to spend money on lawyers, 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, your friend wouldn’t be in such a trouble today.

Len & Rosie