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The Issue of the predeceased spouse

INTRODUCTION

A little known area of California probate law relates to the issue of predeceased spouse. That is, the children of the first spouse to die. In some cases they have an interest when the second spouse, their “step-parent,” dies. This post is loosely based on a real case but, of course, the facts changed to protect the privacy.

FACTS

My client’s mom died in 2012. Mom died with no will. She had 2 children. Mom had been married to step-dad for about 15 years. They owned a home together among other things.  Step-dad just died. He has no children but has some other relatives.

THE LAW

It’s a little known law that in some cases the children of a predeceased spouse actually receive something from the probate estate when the second spouse dies with no will (i.e. intestate succession).  You start the analysis with California probate code 6402 which provides, in part,

“6402. Except as provided in Section 6402.5, the part of the
intestate estate not passing to the surviving spouse or surviving
domestic partner, as defined in subdivision (b) of Section 37, under
Section 6401, or the entire intestate estate if there is no surviving
spouse or domestic partner, passes as follows:
(a) To the issue of the decedent, the issue taking equally if they
are all of the same degree of kinship to the decedent, but if of
unequal degree those of more remote degree take in the manner
provided in Section 240.
(b) If there is no surviving issue, to the decedent’s parent or
parents equally….”

Notice it says “EXCEPT AS PROVIDED IN SECTION 6402.5…” What does 6402.5 say? It provides as follows:

“6402.5. (a) For purposes of distributing real property under this
section if the decedent had a predeceased spouse who died not more
than 15 years before the decedent and there is no surviving spouse or
issue of the decedent, the portion of the decedent’s estate
attributable to the decedent’s predeceased spouse passes as follows:
(1) If the decedent is survived by issue of the predeceased
spouse, to the surviving issue of the predeceased spouse; if they are
all of the same degree of kinship to the predeceased spouse they
take equally, but if of unequal degree those of more remote degree
take in the manner provided in Section 240….”

MECHANICS

Ok, so this appears to give the children of the first spouse a 1/2 interest in step-dad’s estate. However, how does this get done? What happens? Well, that’s where having a lawyer comes in handy!  A lawyer can help to protect the rights of the issue of the predeceased spouse. The attorney can make sure that the family of the step-dad do things right!

CONCLUSION

Hire an attorney to monitor a probate. An experienced probate attorney can protect your interests!