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Is the current wife on the deed to the home or is it only in father's name?
What is the status of the divorce?
And the house is in CA or FL?
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.
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.
I am not sure what you mean by "called out in the trust"?
Who made the trust? father and first wife?
Was the property in the trust prior to father marrying the current wife?
Ok, that changes things entirely since I now know that father has passed...
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.
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.
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.
I am sorry for any confusion as I was under the impression father was still living.
Ok, the trust is not really relevant if it had no assets in it. An empty trust doesn't do anything.
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.
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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