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Carole L. Toebe, As Trustee, Etc v. Yolanda Pulido-Mellado Balyk

August 20, 2012

CAROLE L. TOEBE, AS TRUSTEE, ETC., PLAINTIFF AND RESPONDENT,
v.
YOLANDA PULIDO-MELLADO BALYK, DEFENDANT AND APPELLANT.



(Super. Ct. No. 2315)

The opinion of the court was delivered by: Nicholson , Acting P. J.

Toebe v. Balyk

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Generally, if a person makes a will or creates a revocable trust, then marries, then dies without having modified the will or revocable trust after the marriage, the surviving spouse is entitled to a share of the estate, regardless of the terms of the will or revocable trust. (Prob. Code, § 21610; hereafter, unspecified code citations are to the Probate Code.) One exception to this general rule applies if, before dying, the decedent gave the surviving spouse something and meant that gift to take the place of the surviving spouse's share of the estate. (§ 21611, subd. (b); hereafter § 21611(b).)

In this case, the decedent created a revocable trust, then married, then died without modifying the revocable trust to provide for the surviving spouse. The decedent intended to give the surviving spouse an interest in the decedent's separate property residence, but no transfer was made during the decedent's lifetime.

A superior court commissioner concluded that the decedent "was giving" the surviving spouse an interest in the residence and, therefore, the surviving spouse was not entitled to a share of the estate under section 21610. We reverse. Evidence of the decedent's uneffectuated intent to give the surviving spouse an interest in the residence did not invoke the section 21611(b) exception to the general rule that the surviving spouse is entitled to a share of the estate.

STATUTORY CONTEXT

Section 21610 allows an omitted spouse to share in the decedent's estate:

"Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent's surviving spouse who married the decedent after the execution of all of the decedent's testamentary instruments, the omitted spouse shall receive a share in the decedent's estate, consisting of the following property in said estate:

"(a) The one-half of the community property that belongs to the decedent under Section 100.

"(b) The one-half of the quasi-community property that belongs to the decedent under Section 101.

"(c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument, but in no event is the share to be more than one-half the value of ...


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