California  |  Wills and Trusts

Legal Question

Asked on: 5/25/13, 1:24 pm

brother and his wife filed for legal searation. brother has now died. is the ex-wife entitled to all the assets from my brother? no will

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Answered on: 5/25/13, 1:27 pm by Phillip Wheeler

Anything deemed community property is all hers. There is a slight possibility of obtaining any of the brothers separate property if the brother intended for the monies or assets to go to someone else.


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Phillip D. Wheeler, Attorney At Law- caonlinelawyer.com P.O. BOX 665 Morro Bay, CA 93443-0665

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Answered on: 5/28/13, 3:08 pm by Anthony Roach

Normally a surviving spouse takes a share of all of the community property and varying degrees of the deceased spouse's separate property depending on how many children survived.

Probate Code section 78 defines the term surviving spouse. If your brother had obtained a decree of divorce, she would not be his surviving spouse, and I would disagree with Mr. Wheeler, as the terms of the divorce decree would determine property issues. But Probate Code section 78 also states that a party to a marriage settlement agreement that determines property issues would also not be considered a surviving spouse.

I can't tell from your post where your brother was in the legal separation process. It may be possible that they signed a property settlement agreement which may have terminated marital property rights. If so, I suggest speaking to a competent probate attorney as soon as possible.


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Law Office of Anthony A. Roach 9909 Topanga Canyon, Ste.313 Chatsworth, CA 91311

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