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Rena

CA-Dad dies, was in last weeks of divorce, settlement signed-do my niece & I get any of the estate?

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California State: My dad died a few months back.  I was named administrator of his estate while we go through probate.  He was just 26 days short of being legally divorced.  His ex-spouse (my step-mother) signed over the deed to all the property & business in their divorce settlement and relocated out of state.  We aren't completely sure who stands to inherit my father's estate.

 

QUESTION:

1) Will the court consider them still married?

 

2) In California if they didn't have their community & business property seperated does everything then become community property?  

 

3) If she is ruled to still be legally married does that mean she gets everything or do my niece and I still have stand to inherit a percentage?

 

4) She's filing a claim to contest her divorce, but has offered my niece and me a deal - cash payout and leave (successful) business to her and we agree to not have any claim on the business.  If we agree she won't contest the divorce, but assumes she will be given everything when probate ends.

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You can't divorce a dead man. There is no divorce to pursue. They died married. It isn't clear what might have been signed over or retained as joint or marital property versus individual property in anticipation of divorce. Is there a will? I suggest hiring an estate attorney to determine what assets still remained in your father's name at the time of his death and how to handle those assets.

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They aren't "ex" spouses; they're married. 

 

I'd like to think you'd have reviewed California probate law before asking to be appointed administrator of his estate (and being named such indicates there was no will nominating someone as executor).

 

"We aren't completely sure who stands to inherit my father's estate."

 

Does the settlement agreement not say that they're each giving up their right to make any claim against the other of any kind?

 

What resource has been indicating that his wife would be his sole heir?  Or are you referring to some unchanged and undestroyed will your father had before the divorce action was filed?

"She's filing a claim to contest her divorce, but has offered my niece and me a deal - cash payout and leave (successful) business to her and we agree to not have any claim on the business."

 

If she already entered into a settlement agreement/contract with her husband and gave up X, she will have a very, very difficult if not impossible time getting a court to toss out that contract.

 

Please consult with a local estate-probate attorney -- preferably one with some experience in dealing with death of a party post-settlement agreement but before termination of the marriage and final judgment of divorce.

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Luckily, the wife has already signed over certain assets.  I could understand the wife having dragged her heels on effecting aspects of the marital/property settlement agreement and belatedly declaring X was defective or faulty or whatever the heck she may be arguing now, but ...

 

It's unclear whether you need to hire someone to represent the estate in the family court as it relates to whatever she's challenging over there, given the marriage apparently hadn't been dissolved (at least you've not said anything to indicate the marriage had dissolved and all they were waiting for was the final judgment to be entered). 

 

It may be that most of this can be deal with in the probate court, but it's worrisome that you mention nothing about having an estate attorney.

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I was named administrator of his estate while we go through probate.

 

Just so we're clear, does this mean that the probate court appointed you to serve as administrator?  Or does it mean that your father's will (if he had one) nominated you to serve as administrator?  Note that, since I don't know if you understand the distinction between an "administrator" and an "executor" and, therefore, don't know if your use of "administrator," instead of "executor," was intended to imply anything), I'm disregarding that rather technical distinction.  If the court appointed you to serve as administrator, did you serve a copy of your petition for probate on your (former-)stepmother?  Did she contest your appointment as administrator?

 

 

 

He was just 26 days short of being legally divorced.

 

Please clarify exactly what this means.

 

 

 

Will the court consider them still married?

 

That depends on whether or not the divorce court had entered a judgment of dissolution of marriage.  If that hadn't yet happened at the time of death, then they were still married.

 

 

 

In California if they didn't have their community & business property seperated does everything then become community property?

 

This is too vague a question to answer in the abstract.  What is the distinction you're trying to draw between "community . . . property" and "business property"?  "Business property" is a term that has no specific legal meaning.  "Community property" means property acquired by either spouse during the marriage and which is not "separate property."  See Cal. Family Code Sections 760-772.  "Business property" may be community property or it could be separate property.  Can you provide an explanation regarding the property about which you are concerned and what you mean when you say that "they didn't have [the] property seperated [sic]"?

 

 

 

If she is ruled to still be legally married does that mean she gets everything or do my niece and I still have stand to inherit a percentage?

 

You haven't told us whether your father left a will or, if he did, what his will says.  Nor did you tell us anything about why you think your niece (to the exclusion of any other surviving relative?) might stand to inherit anything (did your sibling who is your niece's parent predecease your father?).  Without that information, there's no way for anyone to comment intelligently about this (other than by coming up with a bunch of "if-then" hypotheticals).

 

 

 

She's filing a claim to contest her divorce

 

What exactly does this mean?  My guess is that it means she has told you that she intends to do this, but I'd rather not guess, and have no idea what you (or she) might mean by "contest her divorce" (especially since it's not clear what the status of the divorce case is).

 

 

 

QUESTION:

. . .

4) She's filing a claim to contest her divorce, but has offered my niece and me a deal - cash payout and leave (successful) business to her and we agree to not have any claim on the business.  If we agree she won't contest the divorce, but assumes she will be given everything when probate ends.

 

It's worth noting that your "question" number 4 isn't actually a question.

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Thank you everyone.  You answered a lot of questions.  

 

Now to answer some of yours:

 

There was not a will.  I do have an attorney that's assisted me with starting the probate process.  Thus I was named the administrator of the estate.  

 

Yes, my younger brother predeceased my father and had one daughter.  That is why I referred to myself and my niece as potential heirs.  

 

My attorney stated that if they're considered still married (which I now know they are) the signed divorce settlement still comes into play.  It basically stated that my step-mother was giving over all her rights to property and business to my father.  She signed the deed over to him.  She left with a their second home, her truck, one pet and one bank account...at the time she just wanted out.  

 

I understand now that they will be considered married; thus she will receive all community property.  I'm assuming the settlement is also void? 

 

She's offerring a deal because she doesn't want to chance that me or my niece get any of the business.  As she plans to bring her grandson in to run it and does not want to partner with us...in the event we get a small percentage.

 

One last question, does the business fall under community property? 

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"I understand now that they will be considered married; thus she will receive all community property."

 

How you figure?

 

"I'm assuming the settlement is also void?"

 

Why would you make such an assumption?   :)
 

"She's offerring a deal because she doesn't want to chance that me or my niece get any of the business."

 

Is there a particular reason you're presuming there's any basis for her to "offer[] a deal" in the first place?  From what you said the first time around, she's delusional or thinks you're stupid or ignorant, and hopes you'll fall for it. 

 

It's unclear whether you didn't really process information from earlier, but if she signed a contract giving up her interest in X-Y-Z and him (probably) buying out any of her marital interest in his business, she's almost certainly stuck with the terms of that contract.  (I cannot fathom that the contract says "this is void if one of us kicks the bucket before the final judgment of divorce is entered.")

"One last question, does the business fall under community property?"

 

You can't possibly expect we strangers to give you an answer to this.  :)

By the by, I suggest you find a better estate-probate attorney -- one with established litigation experience.  I trust you understand that estate assets may be used to defend the heirs.  This is true whether or not that includes the wife.  You haven't bothered to indicate what the settlement agreement almost assuredly says, unless horribly written, which is that they each give up any claim against the other ... and that would include claim on respective estates.

 

If by some chance you've come here without having a copy of that settlement agreement (the entire family court file, in fact) and then analyzing it, that was an inexplicable mistake. 

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Platinum Contibutor:

 

My assumption or understanding, if you will about "still married" was a response to fact that he died while they were legally married. 

 

My "basis for presuming there is any basis to make a deal" is that she indicated she feels she will only receive half and stated that she did not want to partner with us. So to avoid having to work with us she'd prefer to just make a cash offer and sign over mine and my niece's portion, if there is any.

 

I did assume the settlement would be void since the marriage is still legal.  I figured the contract would not be binding since my dad died.  This will be a question (one of many) to have my probate lawyer answer.

 

I do have an attorney and am in the process of aquiring a second (probate).  My statement of "one last question" was only in reference to that post.  I do not and would not presume comments throughout this feed from strangers would be my final answer to anything.

 

I have questions running throughout my mind and decided to put them out there, perhaps poorly written, but overall just to ask them out loud and hear some non-bias responses.

 

I am extremely grateful for any and all suggestions given to me.   :)

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PG and I are both "platinum"; I'd use the screen names instead.  :)

 

"My assumption or understanding, if you will about "still married" was a response to fact that he died while they were legally married."

 

Er, I wasn't referring to the assumption about still being married (they are), but your assumptions that the settlement agreement is of no effect.  Re-read my post(s). 
 

"My 'basis for presuming there is any basis to make a deal' is that she indicated she feels she will only receive half and stated that she did not want to partner with us."

 

I think my point is that it's entirely unclear why you believe she stands to inherit a thing in light of the settlement agreement (with or without a judgment of divorce or dissolution having been issued).

 

"I did assume the settlement would be void since the marriage is still legal."

 

Even if someone had chosen to put a stop to the divorce and merely decided to stay separated indefinitely, that doesn't mean the property settlement agreement is void or voidable.  At least I don't know of any CA case law to that teffect.

 

"I figured the contract would not be binding since my dad died. This will be a question (one of many) to have my probate lawyer answer."

 

I wouldn't ask the probate lawyer, and this is particularly true if the lawyer is fuzzy about whether or not they're still married.  :)

"I do have an attorney and am in the process of aquiring a second (probate)."

 

I'm confused.  What kind of lawyer did you hire?  (You may treat as rhetorical.)

 

"My statement of 'one last question' was only in reference to that post.  I do not and would not presume comments throughout this feed from strangers would be my final answer to anything."

 

Sorry, but this is a bit garbled.  You may have misinterpreted my response that you can't expect us to give you an answer to the question of whether "the business fall under community property."   So far, you've indicated to us that the wife entered into a contract and these two apparently operated under that contract and fulfilled at least major terms because she apparently signed over her share (?) of it to him. 

 

If the terms of the settlement agreement are what I think they are, absent CA case law to the contrary, she gave up any claim against his estate (you also don't say as of when they addressed; you only say they settled up and she moved elsewhere). 

 

You've indicated she wants another bite at the apple in the divorce case (as it relates to this settlement agreement, I conclude) -- you don't say where that stands or whether you've even looked at related records.  I've indicated there's no reason to believe so far (based on what you've said) that any court would entertain a scenario where that contract would be tossed out/voided and along with it undo  any related transactions, as though it never were entered into let alone operated under to (possible) completion.

 

If things stand as I suspect they may on the basis of the settlement agreement, she is entitled to zip by operation of the terms of the contract she entered into and (I presume without knowing) fulfilled with your father.  One also presumes without knowing that your dad's share of this second home to which you refer and 100% of whatever bank account(s) was what she wanted in exchange for signing over her claims to anything else that a court might've divvied up.

 

Now you've got me curious about the finer details, and about topics raised/blanks that you've not yet filled.  :)

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Rena,

 

Thank you for the post.  As for the business as a community property asset, Did your father start the business before or after he was married?  Did his wife participate in the business while they were married.  Was it always successful from the beginning or did it progressively get to that point during their marriage?

 

The FindLaw.com Team

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Hello,

 

I was just looking for information regarding my own problems with an estate in 2nd or 1st Circuit Ct of appeals and found a case that is similar to this posters questions regarding divorce and death during a divorce proceeding.

The name of the Case is

Forcie Vs Metro Life Insurance Company: I thought I would pass it along even though it isn't in the 9th circuit Ct. I also didn't read the case but whatever, thought it might interest some posters on this topic.

 

 

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"Forcie Vs Metro Life Insurance Company" isn't coming up with anything in my searches.  At any rate, best not to toss out case law if you don't even know if it's on point.  (Probably a case where a not-yet-officially judgment-of-divorce-entered spouse sued a life insurance company where the deceased had "wife" or "husband" as the beneficiary and yet signed away his/her right to anything owned by the deceased spouse, or changed beneficiary pre-divorce and wanting to contest that.)

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My attorney stated that if they're considered still married (which I now know they are) the signed divorce settlement still comes into play.  It basically stated that my step-mother was giving over all her rights to property and business to my father.  She signed the deed over to him.  She left with a their second home, her truck, one pet and one bank account...at the time she just wanted out.  

 

I understand now that they will be considered married; thus she will receive all community property.  I'm assuming the settlement is also void?

 

If the judgment of dissolution was never entered, then yes, they're still "married."  However, that doesn't make the settlement agreement "void" or unenforceable.  It may well be enforceable to prevent your former stepmother from receiving what a surviving spouse otherwise would receive.  As administrator of the estate, you'll need to have your attorney look into this.

 

 

 

does the business fall under community property? 

 

Too many unknowns here.  Is the business a corporation or LLC or something else?  If it's a corporation or LLC, who are the shareholders or members?  When did your father acquire his interest in the business?  Before or during the marriage?

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PG, the post I wrote yesterday was on point with the question the poster who originated this thread asked.

Again: There is a Case in the 1st or 2nd Circuit Ct of appeals named: Forcier Vs Metro Life Ins. Co.

that is dealing with the subject of a person dying in the middle of a divorced proceeding. The original poster is from the 9th district but it the metro case may shed some light on the subject.

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Again: There is a Case in the 1st or 2nd Circuit Ct of appeals named: Forcier Vs Metro Life Ins. Co.

that is dealing with the subject of a person dying in the middle of a divorced proceeding. The original poster is from the 9th district but it the metro case may shed some light on the subject.

 

Forcier v. Metropolitan Life Ins. Co. (I don't have a proper cite, but here's a link:  https://caselaw.findlaw.com/us-1st-circuit/1386093.html) was a 2006 decision issued by the U.S. Court of Appeals for the First Circuit (on appeal from a decision by the U.S. District Court for the District of Massachusetts).  The husband and wife had divorced, and the divorce court (in MA, divorces are apparently done in the "probate court") "entered a judgment of divorce nisi on October 6, 2003," which was to become final ("[w]ithout any further action by either the parties or the probate court") on January 5, 2004.  However, the husband committed suicide on October 21, 2003.  The husband had a life insurance policy with no beneficiary designation, and the issue was whether the wife or the husband's mother (as administrator of the husband's estate) should get the policy proceeds.  Because the policy language was such that the insurer had broad discretion to decide who should get the proceeds (and because the lower district court assumed that role when it allowed the insurer to interplead the policy proceeds), the issue on appeal was whether, under federal law (ERISA), the district court had abused its discretion.  The court's decision did not turn at all only the fact that the divorce court had issued a judgment nisi that had not yet become final when the husband died.  Even if it had discussed that subject, it wouldn't be pertinent because the issue would have involved Massachusetts divorce law, which is obviously neither controlling nor relevant in California.

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Fallen

We didn't hire an attorney.  A couple of days after my dad passed my stepmother contacted my father's lawyer to see how to get funds freed up as the season was about to start and she no longer had any access to the business or his personal account.  This is when the attorney advised her that there wasn't a will and that she had no claim to anything due to the divorce settlement she signed.  Releasing everything over to my dad.  At that point my stepmother wasn't wanting anything and was okay w/me being administrator throughout probate. We just continued to use this same lawyer as it seemed simple enough to just wait out probate as my father didn't have more than two outstanding debts that would get paid off right away.  We were trying to get through as a family, but just last week my stepmother and her attorney met with me and my lawyer to advise us she's planning on filing a motion to contest her divorce (her words).  Since they were still married, I think what she's in essence trying to do is contest the divorce settlement...now stating she signed under duress. She felt threatened by my dad. (they were married 30yrs)  The divorce was filed and settlement signed in October 2014 and she began moving later that month and by November she had relocated out of state.

 

I wasn't aware the settlement contract was considered seperate and still valid from the divorce and that is why I was thinking she's going to receive some if not all of the estate.  This is all new for me and since I'm not from California I was trusting my father's lawyer could see me through probate.  Finding out she no longer plans to work with me I'm looking for a probate attorney who has experience since its no longer going to be a smooth transition as a family.  

 

As I get more details I will try to update you. 

 

FindLaw-FN

In the beginning she did work with the equipment some, but as the business grew she transitioned into the Office/Payroll Person and my dad took care of the labor, delivery...hands on work.  It started small one tractor, small piece of land to a large acreage of land, large fleet of equipment, delivery trucks, contract with large business, local farmers...overall a very successful business of almost 30yrs.

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"We didn't hire an attorney."

 

Easily misinterpreted based on prior responses, particularly the confusing use of "we" (I guess you mean the niece), but rather obviously in your follow-up comments you refer to "[w]e just continued to use this same lawyer..."  You MUST as administrator (not only as heir) hire counsel; your obligation to the estate means you fight anyone who isn't entitled to something. 

 

"We just continued to use this same lawyer as it seemed simple enough to just wait out probate ..."

 

I don't know who "we" are.  There's no "we" in this as it relates to you being administrator of the estate.

 

"... just last week my stepmother and her attorney met with me and my lawyer to advise us she's planning on filing a motion to contest her divorce (her words)."

 

I don't know why you'd be meeting with her, or why your (father's?) lawyer would recommend meeting with her (but for $$$ that he'd make from the endeavor).

 

"Since they were still married, I think what she's in essence trying to do is contest the divorce settlement...now stating she signed under duress."

 

Yeah, well, you yet again fail to mention the timeline between when they settled (October 2014) and when she ultimately signed over interest in business and when he signed over second home, but I'll bet you the gap in time is notable and will completely undermine any notion that she has grounds to contest.  I'll bet that her counsel won't be able to tell a court under oath that she said "he threatened me" and "I told her not to settle, 'cause she was getting a bad deal; I told her to go to the police" what not with a straight face

 

"She felt threatened by my dad."

 

Muh-huh.  And there are police reports about this, right?  Other admissible evidence?  I'm not at all clear why you aren't commenting on this with a notable tone of sarcasm.

 

I recommend that you scope out attorneys with litigation experience, as I said before.  I'd use the "find a lawyer" feature here and elsewhere for the relevant county and a couple of adjacent counties.  I'd scope them out thoroughly and interview over the phone. 

 

You're free to ask the father's lawyer for recommendations, but apparently he's not enough of a shark to shut down her nonsense but instead actually recommend that you meet with her.  I find that suspect, given he seems to understand that she signed away her rights and that any bald assertions about "duress" are almost certainly nonsensical. 

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Rena,

 

It is possible that your father's spouse is entitled to be paid something out of the success of the business, sort of a salary if you will.  You need to hire an attorney to discuss this with you as California is a community property state and the formula used to determine what she gets may need to be disputed depending on the the facts.

 

Take a look at this article (underlying information about the issue):

 

3 Ways to Protect a Business in Divorce

 

If you like, you can begin your search with this lawyer directory

 

The FindLaw.com Team

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