Is it legal for my mother’s husband to take half of her estate?

Full question:

My mother passed and left her estate to be divided three ways. Myself, my brother and her husband. Her husband (the executor) took half, and then divided he other half three ways. This seems wrong. Is it legal? Also, Can I find out her net worth (stock portfolio) in the year or so prior to her passing? 

• Category: Wills and Estates
• Subcategory: Spouses
• Date: 04/07/2025
• State: California

Answer:

The legality of your situation depends on specific facts not fully disclosed. In California, property owned by a married couple can be categorized as community property or separate property. When one spouse dies, the surviving spouse typically retains half of the community property, while the other half belongs to the deceased spouse's estate.

If your mother’s husband took half of the estate, he may have been entitled to his share of the community property. The remaining half can be divided among the beneficiaries according to her will. If your mother’s will specified that her estate should be divided equally among you, your brother, and her husband, then he would receive one-third of that half, not half of the entire estate.

California Probate Code Sections 100 and 101 clarify that upon the death of a married person, one-half of the community property belongs to the surviving spouse, and the other half belongs to the decedent. If your mother’s husband claims more than his legal share, you may want to consult with a probate attorney for further guidance.

As for finding out your mother’s net worth, including her stock portfolio prior to her passing, you may need to review her financial records or contact her financial institutions. This information may also be available through the probate process, as the executor is typically required to provide an inventory of the estate's assets.