Will separated Spouse be entitled to the Dad’s property should he pass

My 92 year old father recently separated not legally from
his wife after 5 years of marriage. They have two homes and
each were quick deeded to the other so each one owns a home.
In my father’s will he leaves his property to his surviving
children equally. Since we are in a community property state
my question is will his spouse be entitled to his property?

Asked on September 16, 2018 under Estate Planning, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Since there has been no divorce, then your grandfather and his wife are still legally married even if they are separated. Accordingly, your grandfather's wife is entitled to any and all property acquired during the marriage; in CA this is known as "community property". Anything owned pre-marriage would still remain your grandfather's sole and separate property and she would have no rights to it.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

She is entitled to anything that is "community property" since if they have not legally separated and not divorced, they are still married. That means anything acquired during marriage (unless inherited by him) will be considered community property and she will be entitled to an interest in or share of it. If he owned the home premarriage, she would not have an interest in it.


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