My Parent Remarried. Will the New Spouse Inherit Everything?
Dec. 6, 2022
The remarriage of a parent can cause mixed emotions. It is possible to be both happy your parent is not alone and still questioning, will my parent’s new spouse inherit everything?
In marriages and deaths in California, there is community property and separate property. It is that separate property that children may inherit a portion of when a parent dies. There are exceptions, and every case is unique. Remarriage and inheritance rights can get complicated.
At The Law Offices of Kenneth W. Drake, Inc., my job as a probate attorney is to give my clients the information they need to understand inheritance rights. My job is also to help my clients get the inheritance they are entitled to under those laws. I represent clients in Woodland Hills, as well as Ventura, Santa Barbara, and Los Angeles counties, and throughout the San Fernando Valley.
What Happens When My Parent Dies Without a Will?
“Intestate” is the legal term for someone dying without a will. If your parent died intestate, California law dictates who inherits from the estate. There is essentially a “pecking order” under the law of intestate succession that determines who gets what.
The probate court will use intestate succession to distribute the proceeds of anything subject to probate. What is subject to division is not necessarily everything your parent had at the time of death.
How Is Intestate Succession Handled Under California Law?
Community property is not subject to succession. Community property comprises assets in both spouses’ names and virtually all property acquired after the date of marriage. It was jointly owned by the spouses and as such, remains the property of the surviving spouse.
Those assets that belonged only to your parent are categorized as “separate property.” What your parent might have owned prior to the marriage, plus gifts and inheritances during the marriage, is considered separate property in most cases. However, separate property is often commingled during the marriage, and it can be argued that it is, therefore, community property.
For example, if your parent bought a house prior to the marriage but the mortgage after the marriage was paid from a joint bank account, it could easily qualify as community property, even if the spouse’s name was never added to the deed. In cases where your parent had paid a substantial percentage of the mortgage prior to the marriage, it could be argued that a significant portion of its value is separate rather than community property.
Moreover, any separate property your parent assigned a transfer on death or payable on death designation, such as a separate bank account or a vehicle, or any asset with a named beneficiary, such as a life insurance policy, goes directly to the beneficiary and not through probate or succession.
According to the law, if you are your parent’s only child, the spouse would inherit all community property and one-half of your parent’s separate property subject to probate. You would inherit the remaining half.
If you have siblings, the spouse’s share of your parent’s property drops to one-third. The other two-thirds are divided equally among you and your siblings. If one of your siblings is deceased and had children, the grandchildren would divide that sibling’s share.
Are Children’s Inheritance Rights Protected in California?
Broad inheritance rights of children are protected under the law of intestate succession. The inheritance rights of the surviving spouse are also protected. It may seem unfair that the new spouse inherits all of the community property after your parent dies, but that is because it is jointly owned. Once that property is owned solely by the new spouse after your parent’s death, you have no inheritance rights when the spouse dies.
The best action a parent can take is to create an estate plan when they are young and update it as things in life change, such as the birth of children, divorce, and remarriage. When they did not, everyone is subject to California’s intestate succession law.
Look to a Trusted Attorney for Support
As you can see, who inherits what percentage of your parent’s intestate estate is straightforward. What is not straightforward is what the probate court determines is and is not separate property. Therein lies the challenges most children may want to raise to protect their inheritance. If you want to take on the challenge, I am an estate planning attorney prepared and willing to go to court for my clients.
If you want to protect what is rightfully yours, call my office to schedule a consultation. If you want to make sure the children you have or may have in the future don’t have to go through this, let’s talk about your will and other estate planning tools you should consider.
The Law Offices of Kenneth W. Drake, Inc. serves Woodland Hills, California, and the San Fernando Valley. Call now.