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Do stepparents have legal right under survivers rights to 100% of assets in california?

San Diego, CA |

Maybe I am not asking the right question, if step parent wa
s left with all assets by survivors right only, in the abscence of a will from the natural father, is she then entitled to make a new will leaving everything to the stepchildren and nothing to the natural children by CALIFORNIA LAW? No will from natural father, real estate was his and later titled as husband and wife, joint tenantcy. (meaning his before he ever knew her). I am thinking she was only 50% of all assets when the father passed away and the natural children would have priority over her will from the time of his passing. Wishful thinking?

Attorney Answers 4

  1. Best answer

    It does sound like you are asking the right questions. As the other attorneys have said, I think you may have posted this question before. I have been following the posts and you have received some good advice. As I practice in California, my advice is based on California law. I will try to answer your questions based on your post here and previous posts.
    As I understand it, your father died in 2001. He did not have a will and all of his property passed to his wife. I believe that you stated that his real property, and perhaps some other property, was held jointly with the wife. You have stated that, although the property was originally your fathers, they held the property in joint tenancy. When your father died, everything went to your stepmother. In 2006 the wife (your stepmother) revised her will which left all of the property to her children (your and your father’s step-siblings/step-children) and none to you or any of your father’s natural born children. If any of my understanding is incorrect, please let me know.
    Under California law, property that is held in joint tenancy passes to the surviving joint tenant upon the death of one of the parties. Even if your father had a will or other estate assets that required Probate, any property held in joint tenancy would still pass to the surviving joint tenant whether or not the property was included in a will. Once the property passes to the surviving joint tenant (step-mother), she was entitled to do whatever she wanted to. In other words, she was entitled to leave the property to her children in her will.
    If your father and his wife had held the property as tenants in common, however, your father’s share would have/should have passed by intestate succession. Under Probate Section 6400 et. seq., where an individual dies without a will, and has a surviving spouse and one child, the wife receives all of the community property and one-half of the separate property. The surviving child is entitled to one-half of the separate property. If the decedent died leaving the spouse and more than one child, then the wife still receives all of the community and one-third of the separate property. The children would equally divide the remaining two-thirds of the separate property in this situation.
    It’s also possible, although difficult to prove, to allege that your step-mother was unduly influenced to exclude you/your siblings from sharing in an estate that was once your fathers. Additionally, there would be some timeliness issues concerning your father’s estate as he died 11 years ago.
    I do sympathize with your situation. It can be devastating when you do not receive anything from your parent’s estate. Often times, it is not what the deceased parent would have wanted.
    I, too, would be happy to review any documents you have and discuss this further, so that I can more accurately advise you on this. I am located in San Diego, as well, and can be reached at or 619-295-8705.

    Disclaimer: The above answer does not create an attorney/client relationship. My responses are intended to provide general information about the question posted. I am licensed to practice in the state of California. The information provided on this site should not be used as a substitute for conferring with or hiring a competent legal advice from a licensed attorney that practices in the subject area in your state.

  2. Your question is a little convoluted, and I must tell you that I am licensed, but inactive in CA. So a CA probate lawyer would be in a better position to answer your question. That said, it is certainly possible that a man could leave everything to his second wife and nothing to his children from his first marriage (a common reason for estate litigation). If the children want to contest ownership they have to do so when the estate of their father is probated. Once the assets pass to the wife, they belong to her and the children have no further claim on them.

    Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.

  3. This question sounds like a companion question on the boards, but in case it isn't I'll try to give you some direction.

    I'm afraid that your question touches on a number of issues, and I can't address all of them without a LOT more information. However, generally speaking, a person can give away anything he or she owns outright by making a will unless there is some sort of "beneficiary designation" on the property (i.e. joint owner on account). However, there are several types of joint ownership, not all of which have an unrestricted right of survivorship. Also, there are different property rights claims that can be made against an estate. This can sometimes override a person's will (or the automatically presumed heirs under "intestate succession" when there is no will), but those are typically the exception, not the rule.

    In short, there may be something you can do either now or in the future. However, the longer a child waits after the natural parent's death, the more likely his or her rights will be barred by a statute of limitations (most frequently 1 year, although many are shorter). If you think you have a claim, you should meet with a lawyer experienced in probate who can work through your specific facts and then advise you accordingly. Lawyers are, regrettably, expensive but that is because this work is very complicated and requires considerable knowledge and skill. Still, many lawyers give low cost and no-cost consultations, and some work on contingency or partial contingency.

    Best of luck.

    The foregoing does not constitute legal advice and does not form an attorney-client relationship. This information is general in nature and is intended for the public as a whole. Also, this message is not privileged, is not confidential, and you should not include any personally-identifiable information that you would like kept private on the message board. Any person may contact my office directly, but doing so only makes one a potential client, not an actual client. I may or may not agree to represent you after learning more details about your specific case.

  4. Your problem is not the question you are asking. Your problem is that you cannot change the facts in your situation. Your dad was free to set things up in a way that you would be guaranteed an inheritance. He chose to protect his wife, instead. You are out of luck in 99% of all cases. You should get off the computer, though and meet with an attorney in person, show all of the title documents that you have, along with stepmom's Will/codicil, and see if you are in the 1%. That is the ONLY way you are going to get a concrete answer. It is almost certainly not the answer you were hoping you would get.

    James Frederick

    *** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.

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