Mother left Property to Husband and two Children equally but Husband took 1/2 and more. Please help.

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 answer to your question may be based on facts that are not disclosed by the question. However, here are some of the laws in California relating to Husband and Wife when one dies.

Any property that was held as Joint tenants or community property with rights of survivorship passed to the survivor outside the estate. Therefore, if there as real estate and it was titled as stated, it all went to the husband.

For property that is considered community property or quasi-community property when one spouse dies 1/2 of the property belongs to the surviving spouse and 1/2 to the decedent. Therefore, the 1/2 that belonged to the decedent can pass under his or her Will.  They can agree in writing to something different.

It may be that as surviving spouse he retained 1/2 of the property as community property and claims 1/3 of the portion of the community property owned by the decedent and 1/3 of the separate property. To clarify:

1. Spouse gets 1/2 of the community property at the dead of spouse.
2. Decedent leaf property 1/3 each to spouse and 2 children.
3. Property that passes under 2 is decedents portion of the community property and separate property of the decedent.

The California Probate Code provides in Section 100 and 101 as follows:

100.  (a) 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.
   (b) .....

101.  (a) Upon the death of a married person domiciled in this
state, one-half of the decedent's quasi-community property belongs to
the surviving spouse and the other half belongs to the decedent.
(b) .....

For future reference, it should be noted that spouses can waive rights established by California Probate law as provided in California Probate Code section 140 et. seq. Although this may not help in this situation, it may help you in the future if you live in California.

140.  As used in this chapter, "waiver" means a waiver by the surviving spouse of any of the rights listed in subdivision (a) of
Section 141, whether signed before or during marriage.

141.  (a) The right of a surviving spouse to any of the following may be waived in whole or in part by a waiver under this chapter:
   (1) Property that would pass from the decedent by intestate succession.
   (2) Property that would pass from the decedent by testamentary disposition in a will executed before the waiver.
   (3) A probate homestead.
   (4) The right to have exempt property set aside.
   (5) Family allowance.
   (6) The right to have an estate set aside under Chapter 6 (commencing with Section 6600) of Part 3 of Division 6.
   (7) The right to elect to take community or quasi-community property against the decedent's will.
   (8) The right to take the statutory share of an omitted spouse.
   (9) The right to be appointed as the personal representative of the decedent's estate.
   (10) An interest in property that is the subject of a nonprobate transfer on death under Part 1 (commencing with Section 5000) of Division 5.
   (b) Nothing in this chapter affects or limits the waiver or manner of waiver of rights other than those referred to in subdivision (a), including, but not limited to, the right to property that would pass from the decedent to the surviving spouse by nonprobate transfer upon the death of the decedent, such as the survivorship interest under a joint tenancy, a Totten trust account, or a pay-on-death account.

142...................