Hello.
First of all, I should note that Google Answers provides general
information and is not a substitute for professional legal advice. The
information presented below may or may not apply to your particular
circumstances. If you need professional legal advice, you should
contact a qualified attorney in your area.
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If a Californian dies without a will, his estate is governed by the
rules of "intestate succession" under Section 6400 et seq. of the
California Probate Code.
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=06001-07000&file=6400-6414
In a nutshell, if the husband dies without a will, his wife will
inherit all of his "community property." If the husband has no
children, then his wife would also inherit all of his "separate
property." If the husband has one child (or issue of a deceased
child), then his wife would inherit 1/2 of his "separate property" and
the child (or issue of a deceased child) would inherit the other half.
If the husband has two or more children (or issue of a deceased child
or ), then his wife would inherit 1/3 of his "separate property" and
the children (or issue of a deceased child) would inherit (and split)
the other 2/3.
You mention daughters (plural), so the wife would inherit 1/3 of his
"separate property" and the daughters (and any issue of a deceased
child) would inherit (and split) the other 2/3.
This is covered in Probate Code Section 6401:
6401. (a) As to community property, the intestate share of the
surviving spouse is the one-half of the community property that
belongs to the decedent under Section 100.
(b) As to quasi-community property, the intestate share of the
surviving spouse is the one-half of the quasi-community property that
belongs to the decedent under Section 101.
(c) As to separate property, the intestate share of the surviving
spouse or surviving domestic partner, as defined in subdivision (b) of
Section 37, is as follows:
(1) The entire intestate estate if the decedent did not leave any
surviving issue, parent, brother, sister, or issue of a deceased
brother or sister.
(2) One-half of the intestate estate in the following cases:
(A) Where the decedent leaves only one child or the issue of one deceased child.
(B) Where the decedent leaves no issue but leaves a parent or
parents or their issue or the issue of either of them.
(3) One-third of the intestate estate in the following cases:
(A) Where the decedent leaves more than one child.
(B) Where the decedent leaves one child and the issue of one or
more deceased children.
(C) Where the decedent leaves issue of two or more deceased children.
source: Californnia Probate Code Section 6401
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=06001-07000&file=6400-6414
"Separate property" is defined in Section 770 of the Family Code:
"770. (a) Separate property of a married person includes all of the
following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift,
bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
(b) A married person may, without the consent of the person's
spouse, convey the person's separate property."
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=00001-01000&file=770-772
As such, property that the husband owned before his current marriage
would be "separate" under Sec. 770. However, be aware that it's
possible for separate property to be "transmuted" into community
property (e.g., if the husband transferred the property back to
himself and his wife as community property). See Sec. 850 et seq.:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=00001-01000&file=850-853
Also, there can be issues of commingling of community and separate
property. Things could get complicated if the husband had a mortgage
on his separate property and he was making mortgage payments from
community property funds (i.e., his or his wife's wages). This
article by a California lawyer mentions this issue:
"REAL PROPERTY
A house or other real property owned before marriage remains the
owner's separate property after marriage, even though the parties live
in it. However, it is difficult to remove a spouse or even a live-in
companion from a residence, even though that person has no ownership
interest.
If a prior existing mortgage debt is paid from community property,
the community will develop a small but growing fractional interest in
the property. The principal paydown is the numerator: the total equity
in the property is the denominator. This fraction is multiplied by the
total value of the property. The end result is the community interest
in the property.
The problem of lender's intent arises when separate property is
refinanced during marriage. If the lender relies for repayment on the
borrower's income stream or on his general credit, the proceeds of the
loan will be community property. If the loan is a pure purchase money
loan, the property will remain separate. Payments on a loan should be
made from separate property is the separate property character of the
property is to be maintained."
source:
Keeping Separate Property Separate Without a Prenuptial Agreement
by Stuart B. Walzer
http://www.california-divorce.com/premarital/separate.html
Also see:
"....Also, if you make a down payment on a piece of real estate with
separate property funds prior to the marriage, but throughout your
marriage you make mortgage payments from your community wages, your
spouse will have a community interest in that property known as a
Moore-Marsden interest, which is calculated with a formula based upon
the amount of loan principal paid from community funds. However, you
will get your separate property down payment back."
source: Divorce Attorney Georgine Brave San Diego California
http://www.bravefamlaw.com/faq-realestate.htm
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I hope this helps. |
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