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
The key section is 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
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=06001-07000&file=6400-6414
In a nutshell, if your father dies without a will, his wife will
inherit all of his "community property." If your father has no
children (or issue of a deceased child), then his wife would also
inherit all of his "separate property." If your father 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 your father 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.
Thus, assuming that your father dies without a will, whether you stand
to inherit some fraction of his estate would depend upon whether he
has any "separate property."
"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 your father 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 your father 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 your father 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 married
couple resides in the house. The marriage ceremony does not
automatically change the character of ownership of the home. The
source of mortgage payments after marriage, however, raises an issue.
Each payment from community property (i.e., earnings of the husband or
wife) will create a small but growing fractional interest in the
property."
source: Silver Freedman: How to Keep Your Property Separate Without a
Prenuptial Agreement
http://www.silver-freedman.com/library/june_00_bb2.html
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I hope this helps. |
