Husband dies without a will

By McNichol & Tillem

Dear Len & Rosie, I have a friend who is in her 70s. Her husband passed away three months ago. She and her husband got married in 2008, but had lived together for 30 years. He owned the house in his name alone.

Unfortunately there was no will. She had lived with him in this house since about 1978. He has a daughter from a previous marriage who is trying to take the house. Additionally, she’s been told that since they were married for less than five years she’s not entitled to his 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 — the word “intestate” means “no testament” as in “last will and 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 the Legislature declined to disinherit wicked daughters from prior marriages.

In this case, your friend inherits 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 estate if he had more than one child. So at best she’ll 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, and he could have even done it for free, by downloading the California Statutory Will form. And if he 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.

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. So 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. We’re in a recession and everyone wants to save money, 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 Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, 996-4505, or www.lentillem.com. Len also answers legal questions each weekday, noon to 1 p.m., and Sundays, 4-7 p.m., on KGO Radio 810 AM.

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