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Surviving Spouse Rights California

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Surviving spouse rights in California are set forth in California’s probate code and include:

  • Community Property
  • Intestate Share
  • Pretermitted Spouse Rights

In order to preserve all widow’s rights and benefits granted under the law, a California surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.  To learn more about probate in general in California, click here.

What if a Spouse Dies Without a Will?

When an individual dies without a will, California law regarding intestate succession will govern.  Under California law, a statutory framework determines how a decedent’s estate will be distributed.  This is referred to as Intestate Administration.  The amount that the surviving spouse receives depends on the surviving descendants and heirs of the decedent.

Surviving Spouse Rights – Decedent Survived By No Descendants or Issue

The surviving spouse is first in the line of intestate succession and is entitled to the entire intestate estate if the Decedent was not survived by any issue, parents, siblings or issue of a deceased sibling.

Surviving Spouse Rights – Decedent Survived By One Descendant 

If the Decedent was survived by a spouse and one descendant or issue of the deceased descendant, then the surviving spouse will inherit decent’s 1/2 of community property assets and 1/2 of the decedent’s separate property.  Decedent’s child or issue of the child will inherit the remaining 1/2 of the separate property.

Surviving Spouse Rights – Decedent Survived By Parents, No Children Or Siblings

Under California law, if the decedent is survived by a spouse and decedent’s parents, but no children or siblings, then the parents will inherit some of Decedent’s separate property.  The surviving spouse is entitled to all of the community property and 1/2 of decedent’s separate property.  Decedent’s parents will inherit the remaining 1/2 of the separate property.

Surviving Spouse Rights – Decedent Survived by Multiple Children or Issue of Deceased Children

If the decedent is survived by multiple children, one child and the issue of a deceased child, or the issue of multiple deceased children, the surviving spouse is entitled to 1/3 of decedent’s separate property.

Community Property

California is a community property state. What this means, barring a written agreement to the contrary, is that the surviving spouse automatically owns half of what either spouse earned during the marriage. Upon one spouse’s death, the surviving spouse is entitled to one-half of the community property.  Learn more about community property here.

Omitted Spouses

If a person makes a Will and then marries a person not provided for in the Will, the surviving spouse is called an omitted spouse.  Under California law, if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse married after the Will was made,  the omitted spouse shall receive a share in the decedent’s estate. See California Probate Code 21610.The omitted spouse, in addition to 1/2 of the community and quasi-community property, also receives a share of the decedent’s separate property equal in value to what the spouse would have received if the decedent had died without having executed a testamentary instrument.  In no event, however, is the share of the surviving spouse to be more than 1/2 of the value of the separate property in the estate.

Surviving Spouse’s Elective Share or Election Against a Will

As noted above, California is a community property state.  As a result, the surviving spouse does not have the right, like in several other states, to elect between provisions in the will and the share he or she would have received had the decedent, for example, died without a will.  See California Probate Code 120.  The surviving spouse will be entitled to one-half of the community property.

In the event the decedent attempted to dispose of more than his or her share of the community property by a will, the surviving spouse must then decide whether to take under the will as provided, or take one half of the community property.  Under California law, the surviving spouse is entitled to take his or her community share, in addition to bequests made under the will, unless the will states otherwise.

Requirement to File a Known Will

The custodian of a will shall, within 30 days after having knowledge of the death of the testator, file the will to the clerk of the superior court of the county in which the estate of the decedent may be administered, and, mail a copy of the will to the person named in the will as executor.

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