How will the property be divided in the absence of a will when there are adopted children?
Full Question:
My husband passed away recently. He was a successful cardiologist who worked with many reputed hospitals in Santa Cruz and San Diego. We acquired a substantial amount property during our marriage. Since he was well established before the marriage, he owned several properties even before our marriage. We adopted 2 kids and he did not have a will at the time of his death. In this scenario, I am curious about how our property will be treated when the question of dividing it arise?
11/23/2016 |
Category: Wills and Estates |
State: California |
#27107
Answer:
“a) As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100.
(b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101.
(c) As to separate property, the intestate share of the surviving spouse is as follows:
(1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.
(2) One-half of the intestate estate in the following cases:
(A) Where the decedent leaves only one child or the issue of one deceased child.
(B) Where the decedent leaves no issue, but leaves a parent or parents or their issue or the issue of either of them.
(3) One-third of the intestate estate in the following cases:
(A) Where the decedent leaves more than one child.
(B) Where the decedent leaves one child and the issue of one or more deceased children.
(C) Where the decedent leaves issue of two or more deceased children.”
(b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101.
(c) As to separate property, the intestate share of the surviving spouse is as follows:
(1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.
(2) One-half of the intestate estate in the following cases:
(A) Where the decedent leaves only one child or the issue of one deceased child.
(B) Where the decedent leaves no issue, but leaves a parent or parents or their issue or the issue of either of them.
(3) One-third of the intestate estate in the following cases:
(A) Where the decedent leaves more than one child.
(B) Where the decedent leaves one child and the issue of one or more deceased children.
(C) Where the decedent leaves issue of two or more deceased children.”
In California, adopted children who are adopted legally are entitled to receive an intestate share, just as biological children would receive. Therefore, in the above circumstance, the intestate division of property will be as follows:
- The surviving spouse shall receive the complete community property per clause (a) and (b) of Cal Prob Code § 6401.
- The surviving spouse shall receive one-third of the separate property per clause (c) sub-clause (3) of Cal Prob Code § 6401.
- The adopted children would receive the remaining two-third of the separate property per clause (c) sub-clause (3) of Cal Prob Code § 6401 which will be divided amongst them equally.
