Legal Question in Wills and Trusts in California

Community Property

My husband and I were married a year ago with no pre-nup (We have been a couple for seven years, though). We have two houses: one that is joint tenant with right of survivor and the other just has his name on it. He bought the second one for us to move into together, two years before we were married. Our finances are completely intertwined, and we own one s-corporation together and another s-corporation that just has his name on it. I work in both corporations with no salary to speak of.

He is very slow in making a will or trust. My question is, do I have any real disadvantage in his not having a will if the worst happened?

I am concerned that his grown children could remove me from one or both of the houses and corporations. Or since there is no pre-nup, is everything community property?

I don't mean to sound greedy, but most of his kids are estranged from him, and his actions have always been that I would have the full benefit of being his wife.

Thank you.


Asked on 1/05/09, 2:49 am

2 Answers from Attorneys
Janet Brewer Law Office of Janet L. Brewer

Re: Community Property

House #1, as you probably know, would go completely to the survivor. So if you outlive your husband, it would go to you.

Since your husband acquired house #2 before you were married, it would probably be considered his separate property. If he were to die without a will or a trust, you would receive a 1/3 interest in it and his children would receive the other 2/3.

The s-corp that has only his name could be considered either separate property or community property (probably community, but not necessarily). If it's community property, it would all pass to you; if it's separate property, it would be divided the same way as house #2.

So, yes, there is a disadvantage to not having a clear statement in a will or a trust that you have the right to the property.

But what about you - do you want your estate to end up (ultimately) with your husband's children if you die first? You can set up a will or a trust that gives your husband the right to "use" all of your property for his lifetime, but at his death whatever is left would go to your heirs.

You need some estate planning, too!

This information is not intended to substitute for professional legal advice and does not create an attorney-client relationship. You should accept legal advice only from a licensed legal professional with whom you have an attorney-client relationship.

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Answered on 1/05/09, 10:29 am
OCEAN BEACH ASSOCIATES OCEAN BEACH ASSOCIATES

Re: Community Property

An estate plan is in order. Contact me directly.

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Answered on 1/05/09, 12:54 pm


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