Legal Question in Wills and Trusts in California

Re: Pre-nup after 15 years of marriage

This is not a question that can be answered easily. First of all, it would have to be determined whether or not there was a valid prenuptial agreement. Just because there was an agreement does not make it valid.

Next, all of the property that he owned would need to be classified as hes separate property or as community property. Some property can be partially community and partially separate, based on actions taken during the marriage.

Chances are, over 15 years, some property has changed character from SP to CP. What is in the trust is not relevant, if part of the property is deemed to be community. He can only give away his half of CP.

This is a complex issue, and you need some legal guidance. Contact an attorney in your area.

Re: Pre-nup after 15 years of marriage

Carol:

Thanks for your posting, and I am sorry to hear about your stepfather. As you can tell by the other postings, there is no easy answer here. Yes, property acquired during marriage in California is community property.

However, a prenuptual agreement MAY change that, depending upon the nature of the prenuptual agreement, and what has transpired since the prenuptual agreement was entered into.

Your stepfather's estate should be admitted into a spousal petition probate, and then you really need to sit down with an inventory of property, and go over each item and make a "best guess" determination of whether or not it is separate, community, or trust property. At most, the property in the trust can only transfer his interest (1/2) of the community property as a whole.

If you'd like help or more details, please feel free to email me, or call me at 714-568-1560.

Re: Pre-nup after 15 years of marriage

To give you an answer would require many more questions to be answered. Your mom would be entitled to her half of the community property (he does not have the right to give away her half), but what exactly is community property is not apparent from the facts you have given. If you are in Orange County, you can come in for a free 30 minute consultation.

Re: Pre-nup after 15 years of marriage

Your answer depends on the facts of the situation. You should first have a lawyer review the prenuptial agreement, as these may not always be valid for a number of reasons: duress, unfairness or fraud. Also common are prenups that don't address all of the property issues--perhaps there are "loopholes" left in the agreement. Then, review your mother's and stepfather's behavior regarding the assets--they may have changed the agreement, deliberately or not, by their later behavior.

The attorney can also review the trust and will, and the character of your stepfather's property, to see whether your mother is entitled to more than the "few dollars" left in the will.

Re: Pre-nup after 15 years of marriage

If there is a large estate, then it may be worth contesting the pre-nuptual aggrement, and the will or trust. Please call me directly at (619) 222-3504.