Full question:
My husband used to live in N.Y. before his death. According to his will all the properties in California goes to his sister. Can I claim my share in these properties?
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: California
Answer:
Yes, even though your husband was not domiciled in California, you may still have the same right to elect your share in the properties situated in California, as if the said property were situated in the decedent's domicile at death. However, the said property should not be a community property of you and your husband.Here is the relevant law:
Cal Prob Code § 120:
Surviving spouse's right in California real property of nondomiciliary decedent
If a married person dies not domiciled in this state and leaves a valid will disposing of real property in this state which is not the community property of the decedent and the surviving spouse, the surviving spouse has the same right to elect to take a portion of or interest in such property against the will of the decedent as though the property were located in the decedent's domicile at death.
Cal. Prob. Code § 100 (West)
§ 100. Community property
(a) Upon the death of a person who is married or in a registered domestic partnership, one-half of the community property belongs to the surviving spouse and the other one-half belongs to the decedent.
(b) Notwithstanding subdivision (a), spouses may agree in writing to divide their community property on the basis of a non pro rata division of the aggregate value of the community property or on the basis of a division of each individual item or asset of community property, or partly on each basis. Nothing in this subdivision shall be construed to require this written agreement in order to permit or recognize a non pro rata division of community property.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
