Inheritance Rights of a Surviving Spouse
Omitted Spouse & Spousal Rights in California Probate Matters
There are certain cases when spouses are denied the right to inherit their deceased partner’s estate portion. This situation occurs when a person hasn’t updated their will or trust in a long time. And it’s also possible that other heirs might contest the deceased spouse’s share of the estate to have it transferred to them instead. When a spouse signs a prenuptial agreement, there are also times, unbeknownst to them, of the potential ramifications. Through California Probate section 21610, California protects the omitted spouse as an alternate beneficiary through its will contests law.
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Surving Spouse Rights – Omitted Spouse Rights
Occasionally people write a will or trust and neglect to mention their spouse. When this happens the trustee or cotrustees will have the fiduciary duty to comply to the trust or will.
Now, issues arise when someone writes a will or trust recognizing that they are married but then divorces and forgets to update. It can also occur when someone is separated from their spouse but never finalizes the divorce paperwork. It is essential to know that an individual is still legally married under California law unless the divorce is finalized.
In California, you are considered an omitted spouse if you have not been provided for in any way through the will or trust instrument and meet one of these requirements:
- You were married to the deceased spouse when they died
- Your former spouse failed to provide for you in a will or trust executed before your marriage
- You were married to a deceased spouse within 180 days before their death
- You had a child with the deceased spouse
- You were dependent upon the deceased spouse for support at their death.
In that case, an omitted spouse has, under probate law, rights that include receiving:
- Half of the community property and property wages are earned during the marriage.
- Half of the separate property was acquired or inherited by the decedent.
An omitted spouse shall not receive inheritance under probate code 21611 if:
- The deceased intentionally failed to mention the spouse in the will. To add, the deceased said this in the will or trust.
- The surviving spouse made a valid agreement to waive the inheritance rights of the deceased property.
- The deceased provided for the surviving spouse by an asset transfer clearly shown in the deceased’s statements or from financial statements indicating the transfer amount.
- If the omitted spouse was the estate administrator (and the owner was a dependent adult) before the marriage began or if the surviving spouse provided estate administrator services for ninety days.
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Inheritance rights of spouses
Spouses enjoy several rights and benefits under California probate law. Generally, the courts can only enforce these rights during the probate process. There are also time limits on when spouses must exercise their rights.
Spouses have several rights during probate. First, the surviving spouse has a right to petition for an appointment as executor of the estate. If they are not appointed, they can later petition for the removal of the executor.
Second, if the decedent has no children or grandchildren, then the surviving spouse may be allowed to manage all community property without court supervision. Under California Probate 2640 (a), a surviving spouse managing community property must either furnish a bond or give written notice to all beneficiaries under the will before they receive any distribution.
Spouses also have certain rights if they don’t appear in their partner’s will or trust. Spouses in this situation can take what they are entitled to under intestacy (the laws governing the distribution of property when someone dies without a will).
Other rights for spouses in California include:
- The spouse is entitled to a reasonable allowance of the estate to cater to the estate’s administration and maintenance.
- Half of the community property belongs to the surviving spouse when the partner dies.
- Half of the property would go to the surviving spouse if the decedent spouse died without a will.
- If a married person dies, all their property passes to their surviving spouse for administration.
- If the deceased had stated the property to be managed by someone else, this is an exception.
- The surviving spouse has a right to elect a trustee to manage all or a part of the community property.
When a spouse dies, who gets the house?
Under the California probate code, the spouse who survives can remain in the deceased’s residence and use their personal property. In case of property disputes, this is for 60 days after the case is filed in the court of law.
California law authorizes the spouse who survives to inherit the property without court proceedings. However, it provides for an optional court proceeding for the surviving spouse to determine the property that belongs to the decedent.
Who has more rights, spouse or child?
The law protects the children if their inheritance is stated in the will or trust. If the omission in the will or trust is intentional, the law might not protect the child. If the omission is not deliberate, the child may be entitled to inherit.
Can you disinherit a spouse in California?
California is a community property state. It means that both spouses equally own all assets acquired during the marriage. You cannot completely disinherit your spouse with California property laws, whether with or without a prenuptial or postnuptial agreement.
When the spouse dies, what is the wife entitled to in California?
Upon the death of a husband, the wife is entitled to 50% of the community property. The entitlement holds regardless of who it originally belonged to during the marriage.
How long do you have to file probate after death in California?
The California Probate Code states that the beneficiaries must complete the probate process in one year from the date of application, except in the case of federal estate tax which takes 18 months.
What does omitted wife mean?
Under the Probate Code, an omitted spouse refers to a surviving spouse accidentally disinherited under a will or trust executed before the marriage. The law allows the surviving spouse to receive a particular share of the decedent’s estate.
Is a spouse automatically a beneficiary?
For married people, the spouse is the number one beneficiary. If there’s another beneficiary, the spouse can inherit 50%, and the specified beneficiary receives 50%.
While probate can seem complex and intimidating, it’s not always necessary. In some cases, it’s possible to transfer property outside of probate. However, California law provides special protections for surviving spouses if probate is required. To learn more or expert legal representation, get in touch with Hess-Verdon’s experienced inheritance lawyers. Call today at 888-318-4430.
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