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Bay Area Estate And Tax Planning Law Firm
Estate Planning
Trust Administration and probate

Your rights as a surviving spouse

| Aug 2, 2017 | Blog |

Most states, including California, have laws in place to protect surviving spouses and other potential heirs to a decedent’s property. This means that if one spouse dies, the other still has inheritance rights even if a will was never written or an existing will never updated.

If you find yourself in a position where you are worried about your rights as a surviving spouse, it is important to remember that California, as a community property state, will generally support your claim to one half of the marital property you and your husband acquired during the marriage. Read further to find out more about inheritance law and your rights.

Community property

Typically, community property includes any property that you and your husband acquired while you were married. This includes everything from wages earned to furniture you purchased after your wedding. However, not every single piece of property the two of you owned is community property. Some property will be separate in the eyes of the court due to acquisition circumstances. For example, inheritances, gifts and anything you had prior to your marriage is separate property. Also, if you and your husband have a signed agreement that a particular asset or specific property is separate, it will remain so when it comes time to evaluate the estate.

One-half interest

According to community property laws, you own a one-half interest in any marital community property. This means that your husband has the right to leave his half of your joint property to whomever he wishes in his will. For example, if he stated in his will that he wanted he property to go to his favorite charitable organization, he can only give away his half. He cannot will away your half of the community property.

Rights of children and grandchildren

While you, as a surviving spouse, have certain protected rights of inheritance, your children and grandchildren generally do not. The law will step in if it seems that a decedent made an unintentional error in omitting a child from the will. If this happens, then the court will take steps to ensure that the child receives a portion of the estate.

A similar situation occurs if there is a grandchild that might inherit. In many cases, if the parent of the grandchild has passed, the court may recognize the grandchild’s statutory right to inherit. In both cases, if the decedent had an intent to disinherit a child or grandchild, it must explicitly say so in the will.

If you are a surviving spouse and you are worried about your inheritance rights, you may find some security under California law. Your attorney will be able to help you through the probate process so that you receive the property to which you are legally entitled.

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