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Elective Share and California

Stereotypical California story: 70-year-old man divorces his fifth wife. He lives in Beverly Hills and works as a top executive at a large entertainment company and has done so for a number of years. He is very active but recently cut back on his working hours so he can spend time enjoying life. He is used to eating at top restaurants and staying at five star hotels. He regularly vacations in the Caribbean during the winter and hikes in Colorado during the summer. He also owns an apartment in Paris.

Or perhaps he is a Bay-area resident and lives in a mansion in Atherton. He works as a top executive for a Silicon Valley tech company with an office on Sandspoint Boulevard.

His personal life, unlike his professional life, is not as successful. His fifth wife was short-lived and not what he really wanted. To deal with his depression, he heads to a local bar. There, he meets a 30-something waitress who is very attentive to his needs. She takes care of him and calls a cab when he is done. The man takes off from work the following day and, in the late afternoon, heads for the bar. The waitress is there again and sits with him for a few minutes. He tells her about his difficulties and she tells him about her recent divorce. They exchange phone numbers.

A week later, the two are dating. The man, used to the good life, takes her to places that she never dreamed of going. He enjoys her company because she listens to his stories and is more than 30 years his junior.

After several months, she moves into his house, despite the objections of his children. Shortly after, the two get married at an upscale hotel in Jamaica.

A year or so after their wedding, the two start fighting. She wants to be at home during the day and tend to the house. He has people who do that and wants her to get a job. This escalates, causing the two to sleep in different bedrooms. Over the next few years, the relationship has highs and lows, where they are together, separate, then together again.

In the meantime, the executive develops health conditions. The stress of his job and the difficulties of his personal life start taking a serious toll. In a short time, the man passes away.

A few weeks after his funeral, his children move to probate his will. The will states that his son will take $100 million, his daughter $100 million. His wife receives only $20 so she can spend the night at the bar where they first met.

No Elective Share

California, unlike other states, does not have a right to an elective share. Had the above scenario happened in New Jersey, the wife would have the right to an elective share of 33%, despite what the deceased said in his will. California is a community property state, meaning that each spouse owns half of the property. A future article will discuss this matter further.

Planning your estate? Contact the law firm of Melanie Tavare, a Bay-area estate planning firm.

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