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Do you understand intestate succession in blended families?

On Behalf of | Apr 8, 2019 | Firm News |

When someone dies without a will, the California probate courts will have to handle the distribution of assets. People call this process “intestate succession.”

Thankfully, there are relatively clear-cut laws in place in the state that guide the courts in dividing the assets of someone who dies without a will among their closest relatives in a fair and reasonable manner.

In many situations, how the courts must handle assets is straightforward. However, when the deceased is part of a blended family, things quickly become more confusing.

A blended family involves a couple who marries with pre-existing children from outside of their relationship. In other words, one or both of the parents have a biological or adoptive child that is not biologically or legally related to their spouse.

People in blended families facing an intestate succession may have questions about who gets what under California law. This can lead to unnecessary conflict between stepchildren and stepparents in the wake of a tragic loss.

Distribution of the property depends on the kind of property

It may sound strange, but the courts will, in many ways, handle an intestate estate for a blended family in a manner similar to how they handle property in a divorce. The first step is to determine what property is the separate or sole property of the deceased and what property is owned jointly by the deceased and their spouse.

Most assets acquired during marriage or with income earned during the marriage are marital or community assets. The surviving spouse will usually retain their own ownership interest in marital property and will receive the full ownership interest held by their spouse in the marital property as well.

However, any separate property will be open to division with children biologically or legally related to the deceased. Separate property includes property inherited, received as gifts or owned prior to the marriage.

How will the courts handle separate property?

Intestate division for blended families will vary based on the number of children. If there is one child, the surviving spouse and child will each receive half of the separate property. For families with two or more children biologically related to the deceased but not the surviving spouse, the separate property gets divided into thirds, with one-third going to the surviving spouse and the remaining two-thirds divided between the children.

It’s also important to note that the rights of biological children pass down to biological grandchildren. In fact, the surviving spouse will have to share that separate property with other family members even if there aren’t children. Parents of the deceased will have a claim to a portion of the separate assets.

Many factors can impact how the courts handle an estate without a will. Consulting with an estate and probate attorney can help you know what to expect in your situation.