My step dad (Bob) passed away back in April of this year. My mom and my Bob bought a condo listed as husband & wife in Hawaii together for their retirement. Bob went back to California to liquidate some assents and get his property ready to be sold. In the mean time he got real sick for a long time and he passed away in California. His son took care of the funeral arrangements and did not list my mom as the surviving spouse on the death certificate. Bob had a mutual fund with quite a bit of money in it, property and other assets. She has tried to apply for ss survivors benefits, but it was reported that they got divorced. He sent in the death certificate to collect on the mutual fund. My mom and Bob were married for 28 years. Is that fraud? If so what would my mom need to do? We have asked him to amend the death certificate, and he doesn't want to change it. There was no will or a living trust.
2 Answers from Attorneys
Yes it was fraud! She should hire an attorney in California. At the very least contact the county coroner's office and advise them of the error and get a corrected death certificate.
Assuming your Mom and stepfather were married at the time of your stepfather's passing, then yes, Bob's son is undoubtedly liable to your mother for funds that belong to her and not to him.
Your Mom should be able to have the death certificate corrected without the son being involved. If she wants to collect the funds that are owed her, she is going to have to engage in the very unpleasant task of bringing a claim against her stepson. A demand letter may be sufficient to have the stepson do what is right -- but my experience suggests it is unlikely.
Your Mom may wish to get a CA lawyer to assist her with the revisions to the death certificate. She will definitely want to have a lawyer involved in any proceedings against her stepson. Compliance with the probate rules whenever there is a contested matter is not for the faint of heart. Your Mom should do some searching around for experienced counsel in contested inheritance matters -- and if the son was involved in your stepfather's affairs, an investigation into whether a financial elder abuse case is warranted.
I also urge your Mom to act quickly, to prevent the son from spending the money in question or hiding it where it cannot be found.