Does a surviving spouse still have a claim as an omitted spouse if the divorce proceedings have been initiated? : My mom died, and a month before she died, she was seeking a divorce from my stepdad, who she married 3 or so years ago. He moved out, and she spoke with an attorney, but no paperwork was filed before she passed. My mom had a trust before they were married but never included him in it later. All her separate property was in her trust. Would he be entitled to a portion of the separate property as an omitted spouse even though she was planning on divorcing him? He had been caught cheating on her before she initiated the divorce talks.
Brenda’s answer:
I am sorry to hear about this situation.
The short answer is: It depends.
Your mother's late husband would not be able to inherit as an omitted spouse if, per California Probate Code 21611(a), "the failure to provide for the spouse in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments."
There are other exceptions as well. They are all listed here: https://leginfo.legislature.ca.gov/faces/codes_...
If none of these exceptions apply, the fact divorce proceedings were initiated may likely affect how the probate court divides your mother's property so her intent with the trust distributions is carried out.
What area of law does a quiet title action fall under?: There is a dispute between my deceased partner's son and myself concerning title to a mobile home. My partner did not leave a will, but I have a signed TOD for the mobile home.
Brenda’s answer:
The TOD deed should allow you to transfer title to yourself. You would go to California's Department of Housing and Community Involvement and submit:
*The certificate of title
*A completed and signed “Transfer on Death Beneficiary” form
*A certified copy of the death certificate
https://www.hcd.ca.gov/manufactured-and-mobileh...
The mobile home would not be considered real property for a quiet title action unless you also own the land on which the mobile home is located. If that is the case, this site provides more information and a sample quiet title complaint you would file with the Superior Court of San Bernardino County. https://talkovlaw.com/quiet-title-complaint-cal...
If tenant is given a move out order as part of a temporary restraining order, does that effectively end his/her tenancy?: I’m the landlord of a tenant who was served a temporary restraining order, granted to her 70+ year-old husband who is charging her with elder abuse. They’ve lived together in the rental unit for years. The wife contributed to the rent but only the husband’s name is on the lease. The TRO included a move out order that states she must “immediately move out from and not return to [the residence].” She’s removed all of her belongings in the time limit the court gave her. The final RO hearing will be some months from now. I’m not clear whether or not her compliance with this move out order effectively ends her tenancy (so she’s no longer responsible to pay rent). Or if she’s still a tenant, what next steps would I take (and when) to end the tenancy? I read online that a move out order in a domestic violence TRO requires the restrained tenant to leave temporarily, taking only the belongings s/he needs until the final hearing. Is it different for an elder abuse TRO? The statement “move out from and not return” sounds permanent to me, but the fact that it’s in a temporary RO confuses me as to whether her tenancy legally ended when she removed her belongings and walked out the door.
Brenda’s answer:
Since the husband is the only one on the lease, he is the responsible party for the rental costs.
If he breaches his obligations, you can enforce your rights per the lease agreement.
You are correct that a TRO is temporary and the wife may in fact be allowed back after the hearing.
But note: If this is not a month-to-month lease (ie a term of years that has finished and converted to month-to-month tenancy), the husband can terminate the lease early under California's statute "Early Termination Due to Abuse" (Civil Code § 1946.7).
This statute provides that tenants who are victims of domestic violence, elder abuse, or human trafficking can terminate their lease early without penalty.
They must provide the landlord with written notice and supporting documentation, such as a restraining order or police report.
The tenant is responsible for rent payment for no more than 14 days following the notice.
Here is the relevant statute in case this does happen: https://leginfo.legislature.ca.gov/faces/codes_...