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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118127
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Father has evidence of legal separation dated 2006 and Petition

Customer Question

Father has evidence of legal separation dated 2006 and Petition for divorce with proposed property settlement filed with court of jurisdiction at that time but spouse (with whom married in 2004) refused to sign either document. After repeated efforts by Father to obtain spouse's signature, Petition subsequently dismissed. Due to subsequent physical attack upon Father's separate property and threats of physical damage to him and his property, Father filed and received executed TOR against her demanding she cease and desist such action from court of jurisdiction. Neither party has had physical contact nor amiable communication with each other thereafter and both parties lived in separate communities for past ten years. Father assumed and presented behavioral evidence of a new and serious relationship with a female partner pending marriage in 2010 and have been living and cohabiting in joyful format since that time. In November of 2015, Father died apparently intestate (no will found). Upon learning of his death, long time estranged former former spouse engaged attorney to protect her rights, claiming the parties voluntarily remained married notwithstanding with intention to rejoin in a married relationship and that Father's property accumulated since 2006 is and should be classified as Community Property and that former spouse should receive any Social Security benefits provided for in the law..
Question: Is there precedence in the California Probate Court's Records for a reasonable expectation for a ruling that this 2 year long marriage (ten years of legal separation) should or can be considered to be a non factor in the determination of how the deceased's net assets are to be distributed?
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Unfortunately, this is a major problem in that she is still the surviving spouse and he is no longer around to explain his intent, despite proof they have been estranged all that time. In CA, even if they are estranged, the law says the surviving spouse is entitled to their share as surviving spouse unless there was a will to the contrary. So if he did not leave a will explaining she was not to inherit because they were estranged, the fact you prove they were estranged would not legally negate her right to her spousal share as the surviving spouse I am afraid.
You really should engage an attorney to represent the estate to try to minimize what she gets and try to settle the case with her.