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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33716
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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My father owned is home free and clear - purchased in 2004.

Customer Question

My father owned is home free and clear - purchased in 2004.
He married in 2011, she kicked him out in 2012, file for divorce in 2013, but never finalized.
His current wife is asking for 1/3 of the assets. the only asset in the estate is his home.
Does she have a right to 1/3 of the home? He lived in CA, she lives in Florida and they were married in Florida
Submitted: 1 year ago.
Category: Estate Law
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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Is the current wife on the deed to the home or is it only in father's name?

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What is the status of the divorce?

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And the house is in CA or FL?

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thanks

Barrister

Customer: replied 1 year ago.
Home in Ca
Title was in my parents name but was listed as a trust asset.
Divorse was filed but not finalized.
They never lived together. She visited Ca once. He went to florida three times.
Customer: replied 1 year ago.
my mother died in 2004 but he never took her off title.
I sold house already
Expert:  Barrister replied 1 year ago.

Ok, if the house was in father's and his previous wife's name, then that would be considered a separate asset owned by father solely, not a marital asset. Marital assets are assets that are acquired during the marriage or have been converted from separate assets, like adding someone to a deed that you own.

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So if father and his first wife were the ones on the title, then that is his separate property and his current wife has no legal claim to any of the proceeds.

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thanks

Barrister

Customer: replied 1 year ago.
Her attorney is claiming she has a claim to 1/3 of the total asset because she was not specifically called out in the trust.
Is that true?
Customer: replied 1 year ago.
the house is really the only asset in the trust . . .
Expert:  Barrister replied 1 year ago.

I am not sure what you mean by "called out in the trust"?

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Who made the trust? father and first wife?

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Was the property in the trust prior to father marrying the current wife?

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thanks

Barrister

Customer: replied 1 year ago.
house purchase in 8-2004 by my mother and father - community property
my mother died in 11-2004
trust established 2-2005
house never transfer to trust
2011 gets married to Florida women
files for divorce - never finalized
2015 - my father dies after moving to care facility and house was on the market prior to his death - closed a couple weeks later ? House was still in our parents name.
Expert:  Barrister replied 1 year ago.

Ok, that changes things entirely since I now know that father has passed...

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If the deed was in his and your mother's name, when she passed, it became his sole property. Then when he passed with it in his name, it becomes an asset of his estate and would descend according to the terms of his will or under default state intestacy law if he had no will.

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Assuming he had no will, his current spouse would be legally entitled to 1/3 of his estate and his children would split the remaining 2/3 between any children equally.

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So that fact that he has passed and if he had no will changes the entire scenario. If he was alive and had sold the house, then she is entitled to none of the proceeds as it was his separate property.

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I am sorry for any confusion as I was under the impression father was still living.

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thanks

Barrister

Customer: replied 1 year ago.
there was a will and a trust .. . the house was the only asset.
There is no mention of new wife . . exclusion or inclusion . . .
Expert:  Barrister replied 1 year ago.

Ok, the trust is not really relevant if it had no assets in it. An empty trust doesn't do anything.

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If there is a will, and it left the wife an amount she is not happy with, she can claim a "spousal elective share" under CA law which gives her the right to claim 1/3 of the separate property in the estate that father owned under CA Probate Code 6401.

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So if there was a will and it left the wife less than 1/3, she can elect against the will and claim a statutory 1/3 share of his separate property (i.e . anything he owned prior to marriage to her).

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thanks

Barrister

Customer: replied 1 year ago.
ok. . .thanks.
Expert:  Barrister replied 1 year ago.

You are very welcome, even if the news wasn't great..

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If you feel your original question and any related follow ups have been answered, I would very much appreciate a positive rating on the answer I have provided so I receive credit for my work. If you have a new question the JustAnswer folks require that you start a new question page, but you can request me by putting "For Barrister" in the caption and they will get it to me.

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thanks much

Barrister

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