WHAT EVERY SPOUSE NEEDS TO KNOW WHEN HER HUSBAND DIES
By: Mina N. Sirkin, Esq.

If you married a person who had children from a prior relationship, there are many things you need to know about California laws regarding community property when your husband dies.

1. First you will need to know the general definition of community property:

In California, it is presumed that any property acquired during a marriage is community property. However, there are many exceptions to the community property rule:

A. A property which was gifted to a person or was inherited by a person is separate property, UNLESS he/she commingled the asset with community assets.

B. Assets acquired prior to the marriage are generally separate property, UNLESS the asset was a business that your spouse worked in during his marriage to you where his labor added value to the business which was acquired prior to the marriage.

C. A property that is purchased prior to the marriage is generally separate property, UNLESS the asset has been commingled with community property.

For example, if your spouse owned a house before you were married, and the mortgage on that house was paid from his wages during the marriage, that house is now partially community property.

If you signed a prenuptial agreement, a transmutation agreement, or a post nuptial agreement, you may have waived many of your rights. Therefore, you must obtain legal advice to protect your rights.

2. Your spouse cannot give away community property BEFORE he dies, to someone else, without your WRITTEN consent.

In 2004, in the Estate of Miramontes-Najera, (2004) 118 Cal.App.4th 750, the court ruled that if a spouse creates accounts with other persons by using Community Property without her written consent, the surviving spouse can set aside those transfers on an asset-by-asset basis, even if the result is that she may end up with more than half of the community property. This case is a very important case in that it warns spouses that there are in fact methods by which the law will protect the surviving spouse from a Decedent spouses’ actions.

3. Your spouse cannot conceal community assets from you. Good faith does not mean just being treated fairly; it means being given the information you need to protect yourself legally.

4. Your spouse cannot transfer community property assets to his separate trust without your WRITTEN consent. While every person has the right to dispose of their ˝ of the community property by Will upon death, transfers to trust prior to death of community property need a written consent by the surviving spouse.

5. Before your husband dies, you have a right to ask your spouse and should ask about what assets are community which are in his possession. If you refuses to account for the community property, you have a right upon his death to demand his executor/trustee to account to you for the community property.

6. Your spouse cannot give away or transfer YOUR interest in community property to someone else. For example, if your spouse before he dies, attempts to gave a community property house to his children from his prior marriage, you can get your community property interest back and have a right to claim his ˝ of the community property as damages.

7. Your spouse cannot designate as a beneficiary on and IRA account, or a qualified pension plan, any person other than you without your WRITTEN consent. If your spouse has withdrawn community property contributions from his 401k, IRA, etc, without your knowledge, you have recourse against his estate and the designated beneficiary if you act FAST.

8. As many surviving spouses are consumed by the process of grieving after a spouse passes away, you must keep in mind that California has very short statutes of limitation in trusts, estates, and decedent matters. Therefore, you must immediately upon your spouse’s death seek advice from qualified counsel regarding the above.

9. The matters which are resolved easiest are those where the survivor has kept records or obtained financial records of the Decedent spouse. If your husband dies, you must immediately find, obtain, and protect the financial record. If possible, make a second set of copies of all the financial records including tax returns and keep them in another place other than your home.

10. Obtaining tax records and financial records of the Decedent can protect you in several ways:

A. If you or your spouse are audited by the IRS, you can defend yourself properly.

B. If an Estate Tax Return must be filed, you may be responsible for its filing, even though your spouse may have filed separate tax returns during his marriage to you.

C. If there are creditors who have claims against your husband or you, financial records of any debt owed by your spouse can show if the debt is community or separate. If a debt is a community debt, you are responsible for its payment, even if you do not receive a dime from your spouse’s estate.

11. Beware that if your spouse named someone other than you as an executor, the executor may change the mailing address of your deceased spouse and you may not receive any mail about your own community property.

Mina Sirkin is a partner at the Law Offices of Sirkin and Sirkin. She is a Certified Specialist in Estate Planning, Probate and Trust Law, by the Board of Specialization of the State Bar of California.
Telephone Numbers: 818-340-4479 and 800-300-9977. Offices in Los Angeles County and Orange County.

Copyright 2005 © Mina Sirkin

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