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Children of Ex-wife Entitled to Take in Accordance with Man’s Will, Trust, Court Rules

dollar_cube_gift_sjpg11680.jpgA California appellate court upheld the right of the children of a man’s ex-wife to receive the distributions promised to them in the man’s will and trust. In Estate of Lira, the court rejected a daughter’s argument that her father’s ex-wife’s children were disqualified from inheriting, ruling that the ex-wife’s family was related to the man when he executed his estate plan documents and, therefore, exempt from disqualification.

Oligario Lira married Mary Terrones in 1968. Lira had three children from a prior marriage, and his wife had six. Early in 2008, the wife filed for divorce. Eleven months later, with the divorce still pending, Oligario executed a will and a trust. The documents named Oligario’s three children, as well as three of Mary’s sons, as beneficiaries of his estate, and named Mary’s son, Robert Terrones, personal representative of his will and trustee of his trust. One of Mary’s grandsons, Glenn Terrones, was an attorney and prepared the documents for Oligario. The court granted the divorce early in 2010, and Oligario died five months later.

Lira’s daughter, Mary Ratcliff, petitioned for probate of her father’s estate, stating that her father died intestate, and requesting that the court appoint her to administer the estate. Two months later, Robert filed his own petition, producing the will and asking that the court name him as executor. Lira’s daughter then argued that the law disqualified the Terrones sons from receiving anything under the will or the trust because they were related to the attorney who drafted the documents. Robert countered by contending that, because he and his brothers were related to Oligario when he signed the documents, they were exempt from disqualification.

A trial court, and the California Court of Appeal, agreed with Robert. While Section 21350 of the Probate Code, which the daughter cited, generally bars anyone who is “related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of, the person who drafted the instrument” from receiving a distribution under that document, Section 21351 carves an exemption for persons related to the transferor by blood or marriage.


The court rejected the daughter’s assertion that, because Oligario and the Terrones sons were not related when her father died, the trial erred by invoking the Section 21351 exemption. The court explained that the correct point in time for analyzing the familial relationship was not when the transferor died, but when he executed the documents. The “transfer contemplated by [Section 21351] occurs when the transferor executes the instrument that transfers an interest to the transferee,” not when the transferor dies, the court stated. Because Oligario and Mary were still married when he executed his will and his trust, the kinship exemption applied, the court ruled.
Estate planning can be extremely delicate, especially when one’s family includes children, step-children, ex-step-children and children of non-marital partners. The relationships within these blended families can be complex, and the risk of will or trust disputes goes up significantly. If you are embroiled in a trust or estate dispute, consult the California estate and trust litigation attorneys at Ginzburg & Bronshteyn. Our diligent lawyers are well-versed in these issues and are here to help clients throughout Southern California pursue, or defend, their rights under the law. To contact our hardworking attorneys, please contact Ginzburg & Bronshteyn online or call us at (310) 914-3222.

Related blog posts:

High Court to Review Case Awarding Insurance Proceeds to Ex-wife, Los Angeles Probate Litigation Attorney Blog, Jan. 26, 2013
A California Will May Not Prevent an Inheritance Battle, Los Angeles Probate Litigation Attorney Blog, July 31, 2012