SPOUSAL RIGHTS AND OMITTED SPOUSES IN PROBATE
Probate Litigation Lawyers Enforcing Marital Rights To Estates
Surviving spouses face considerable grief upon the death of a husband or wife. However, they must also grapple with sorting out the financial affairs of the estate. Surviving spouses should be aware that the California Probate Code protects them. However, to assert that protection, a surviving spouse must bring the issue before the probate court. Our Oakland probate litigation attorneys represent a surviving spouse and an omitted spouse. We ensure they receive the property to which the law entitles them.
Surviving Spouses Can Receive Both Community and Separate Property
California is a community property state. This means all money or property earned during the marriage is vested automatically in equal shares between spouses. Upon one partner’s death, the surviving spouse may receive up to one-half of the community property. If there is no will or trust, then surviving spouses may also inherit the other half of the community property, and take up to one-half of the deceased spouse’s separate property.
“Omitted Spouse” in the California Probate Code
The probate term “omitted spouse” refers to a person who marries an individual who already has an executed estate plan, which the individual then fails to change or amend after marriage. In such a scenario, the unmentioned spouse is “omitted” from the testamentary instruments. The California Probate Code protects omitted spouses by allowing them to take the statutory share of the estate as discussed above, unless:
- The estate plan specifically disinherited the spouse, or
- The spouse received sufficient assets outside the estate, or
- The spouse executed a valid waiver (either by premarital agreement or other legally enforceable document or contract)
Bay Area Probate Litigation Attorneys Representing Omitted Spouses
It can be emotionally taxing for a grieving spouse to have to litigate against their loved one’s estate in probate court. However, omitted spouses must stand up for their marital rights or lose them forever. Charles Triay, the founder of Triay Law Office, has been practicing contested probate litigation for over 30 years. He has provided unsurpassed representation in notable cases throughout Northern California. Unlike other law firms, the Triay Law Office gives clients the option to pay attorney fees an hourly or contingency basis. Please contact our probate litigation lawyers to assert your marital rights against an estate.
FAQ Learn More About Probate Litigation
Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.
Probate litigation is the term for a lawsuit when a party, such as an heir, beneficiary, creditor, third party or omitted spouse contests a will. Probate litigation also includes charges against fiduciaries of trusts or estates, or creditors’ claims against an estate.
There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.
A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.
Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.
Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.
A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.
If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.
About Triay Law Office
Probate litigation attorney Charles Triay has specialized in California probate litigation matters for over 30 years.Read More
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