Surviving Spouse Rights After Death
What Is a Surviving Spouse?
A surviving spouse, quite simply, is the legal wife or husband who remains alive after their spouse dies.
Due to the nature of a marital bond, surviving spouses generally are guaranteed certain rights that are not guaranteed to anyone else, including the deceased spouse’s children, parents and other relative
What Are the Inheritance Rights of Spouses?
In general, the inheritance rights of surviving spouses only apply to spouses who were married or in registered domestic partnerships when their husband or wife died.
This is not to say you won’t have inheritance rights if you don’t fall under one of the two aforementioned categories. You might. It’s just that your inheritance rights will be different from the inheritance rights of surviving spouses.
After a spouse dies, it’s not uncommon for confusing situations to arise that require the surviving spouse to not only understand, but enforce, their spousal rights after death.
- Perhaps the decedent is trying to dispose of more than 50% of the community property via their will or trust. How can you assert your right to half of the community property?
- Perhaps you are not mentioned in the decedent’s will or trust because the decedent created it before marrying you. Does that preclude you from receiving an inheritance?
- Perhaps you were in the process of divorcing your spouse when they died. Does that mean you don’t have a right to inherit from your spouse’s estate or trust?
- Perhaps you were financially dependent on the decedent when they were alive. Will you be able to access the decedent’s assets during trust/estate administration?
- Perhaps community funds had been used to improve or pay down a mortgage on the decedent’s separate property. Does that entitle you to a share of the property?
- Perhaps you were the decedent’s cohabitating partner. If you never married but had a verbal agreement to pass on property to each other following one of your deaths, does that entitle you to the property, even if the agreement with the decedent had never been formalized by a legally valid document?
If any of the scenarios above resonate with your situation, it’s crucial you seek legal assistance to enforce your spousal rights after death. Our attorneys can support you through every step of the process.
How Are Community Property and Separate Property Divided After a Spouse’s Death?
Unless spouses had signed a valid prenuptial or postnuptial agreement, community property generally will be divided equally between the spouses when one spouse dies. In other words, the deceased spouse would be entitled to dispose of 50% of the community property via their will or trust to the beneficiaries of their choosing.
Separate property, on the other hand, belongs solely to one spouse. As a result, the deceased spouse generally would be entitled to dispose of 100% of their separate property via their will or trust to the beneficiaries of their choosing.
Most spouses own both community property and separate property. Community property belongs equally to both spouses and typically consists of assets acquired over the course of a marriage by either spouse. In contrast, separate property refers to any assets a spouse owned prior to marriage and certain property a spouse acquired during marriage by gift or inheritance.
There is also something known as quasi-community property, which is any property acquired by one or both of the spouses while in a state other than California that would be considered community property had it been purchased in the state. Each spouse owns a 50% interest in all community property and quasi-community property acquired during marriage.
It is important to note that community property in California after death does not merely include the assets a married couple collectively owned; it also refers to any debt they collectively accumulated.
If you are having trouble determining whether your deceased spouse’s disposition of property via their will or trust violates your spousal rights after death, Keystone’s skilled probate attorneys can investigate the issue on your behalf, and, if necessary, litigate to secure for you the inheritance to which you’re entitled.
What Are the Inheritance Rights of Spouses Whose Spouse Died Without a Will?
When a decedent dies without a will (i.e., they die “intestate”), the court will refer to intestate succession laws to determine which of the decedent’s heirs will inherit their estate. The surviving spouse generally stands to inherit first, followed by the decedent’s children, their parents, their siblings and so forth. Keep in mind that stepchildren sometimes have priority intestacy rights over other heirs.
It is important to note that while wills and trusts generally can be contested, intestate succession laws generally cannot. The only exception is if an heir is proven unworthy of an inheritance because they engaged in foul play to obtain it. In such a situation, the heir could be disinherited.
In all other scenarios, the individual appointed as the administrator of the estate must distribute the decedent’s intestate estate to their heirs in accordance with the order of priority established by intestate succession laws, which can be found in California Probate Code sections 6400 – 6455.
Is the Surviving Spouse Given Priority to Serve as Administrator?
Probate Code section 8461 establishes an order for who is entitled to appointment as administrator of an estate. At the top of the list is the decedent’s surviving spouse/registered domestic partner.
How can you become administrator of an estate if the decedent’s surviving spouse or domestic partner don’t desire to take on the role? Unfortunately, the order of priority established by Section 8461 still must be followed. The decedent’s adult children are prioritized second, followed by their grandchildren, their parents and so on.
Keep in mind that administrators are allowed compensation for the time and energy they spend administering an estate, so if you are a surviving spouse who is up to the task, you can gain a source of income by acting as administrator.
If you would like to be appointed administrator of your deceased spouse’s estate, you may wish to consult with an estate lawyer, who not only can help you secure your appointment but counsel you on your duties as well.
How Are Community and Separate Property Divided When a Spouse Dies Intestate?
When a spouse dies intestate, the surviving spouse generally has an automatic entitlement to all of the couple’s community property. Only a valid prenuptial or postnuptial agreement can supersede this law.
Dividing separate property under intestate succession can be a bit more complicated, since which heirs are entitled to the decedent’s separate property and the percentage of separate property they’re entitled to depend on whom the decedent has as heirs.
For instance, if the decedent’s only heir is their surviving spouse, their separate property will pass entirely to the spouse under intestate succession. On the other hand, if the decedent has a surviving spouse and child, their separate property will be divided equally between the spouse and the child. If the decedent has a surviving spouse and more than one child, one-third of the property will go to the spouse, and the remaining two-thirds will be divided among the children.
What Are the Inheritance Rights of Putative Spouses?
The inheritance rights of putative spouses are largely identical to the inheritance rights of surviving spouses. Because the property acquired over the course of a putative marriage is considered quasi-marital property, it is divided between the partners in the same manner community property is divided when a marriage is valid.
A putative spouse believes their marriage was carried out in good faith; however, in actuality, the marriage is not legally valid because the proper statutory requirements for marriage were not met by one or both of the parties.
Suppose a person believes they successfully divorced their previous spouse. Unaware that their divorce was invalid, they enter into marriage with a new spouse. Because the divorce was never formalized, the person’s prior spouse is their legal spouse, and their new partner is their putative spouse.
What Are the Inheritance Rights of Unmarried Cohabitating Partners?
In recent years, inheritance laws in many states have been amended to serve the growing number of couples who are cohabitating without getting married.
While a surviving unmarried partner will not have the same guaranteed right to a decedent’s property as a surviving spouse, they may still have rights to a portion of their deceased partner’s assets, so long as their relationship with their deceased partner met certain conditions.
Continue reading to learn about the protections offered to some surviving cohabitating partners who are unmarried.
Do Common Law Marriages and Marvin Actions Protect Unmarried Cohabitating Partners?
There are two types of protections that may be available within the law for surviving unmarried cohabitating partners: common law marriage and enforcement of cohabitation agreements (sometimes referred to as “Marvin Actions,” based on a famous case involving the late actor Lee Marvin).
In a common law marriage, couples do not have to officially get married in order to be afforded the community property rights of couples who are legally married. If common law couples meet certain conditions (e.g., the couple resided together for a specified period of time, the couple presented themselves as married to family and friends), they may be provided the same protections as surviving spouses. Several states recognize common law marriage, but California is not one of them.
In California, where common law marriages are not recognized, surviving partners can potentially file a Marvin action to claim their rightful inheritance. In order to successfully assert a Marvin claim, it must be proven that an agreement — whether it was written, verbal or implied — existed between the couple around the passing down of property after death. It should go without saying that legally valid written agreements have the best chance of holding up in court, but, with help from an experienced probate attorney, even verbal and implied agreements can be enforced.
What Are the Inheritance Rights of Spouses Omitted from a Will or Trust?
California affords certain protections to surviving spouses, children and registered domestic partners whom the decedent unintentionally omitted from their will or trust. In most cases, these spouses, children or partners were unintentionally omitted because the decedent created their will or trust before knowing about their existence and never amended their will or trust before passing away.
It may be disappointing for a surviving spouse to learn about their omission from a decedent’s will or trust. They may be wondering whether they have the same inheritance rights as a surviving spouse who was not omitted.
The court generally grants an omitted spouse (i.e., “pretermitted spouse”) the same property rights the spouse would otherwise have been entitled to under the law. This means that if a spouse is considered an “omitted spouse,” they would stand to inherit the same share of the decedent’s community, quasi-community and separate property that they would inherit if the decedent had died intestate.
It’s important to keep in mind that a spouse or child won’t be considered “omitted” in California under certain conditions, including the following:
- If the decedent’s will or trust makes clear that they intentionally disinherited their spouse and/or child
- If the decedent sufficiently provided for the surviving spouse and child through other means (e.g., life insurance policies, bank accounts, gifts)
- If the surviving spouse waived their inheritance rights through a prenuptial agreement or postnuptial agreement
Our probate attorneys are able to help surviving spouses determine whether they qualify as an omitted spouse. If they do, our lawyers can work with omitted spouses to ensure their inheritance rights are upheld during administration.
Important Spousal Rights After Death to Know
As a surviving spouse, you are guaranteed certain rights. These spousal rights are crucial in protecting your inheritance and ensuring your financial stability.
In the following sections, we’ll address the most important rights surviving spouses have after their spouse dies. If you have questions, consulting with a knowledgeable probate attorney can prove invaluable.
Is a Surviving Spouse Entitled to Contest a Will or Trust?
A surviving spouse can contest a will or trust if winning their contest would mean they receive a greater inheritance. In other words, they can contest the document if the document being invalidated would result in their receiving a greater inheritance by way of intestate succession.
As a general rule, anyone with standing (i.e., a financial stake in the outcome of a case) is entitled to bring a will contest or trust contest.
Of course, for a surviving spouse to challenge a will or trust, the document must also meet one or more of the grounds for contesting a will or trust.
How Do Community Contributions to Separate Assets Wo
When community funds are used to make capital improvements to a separate property asset, the community acquires a pro tanto equity interest in the property to the extent that the capital improvements increase the value of the property. The same is true when community funds are used to pay down the principal balance of a mortgage on separate property real estate.
Another instance in which commingling of property might affect the characterization of an asset is if a business is brought into a marriage by one spouse but continues to operate during the marriage. California law recognizes that, where efforts of community contribute to the success of a business during a marriage, the community should be entitled to an ownership interest in the business, even though the business began as the separate property of one spouse. How would business assets be allocated between separate property and community property? The Pereira and Van Camp Formulas is used for making this determination.
How Do Prenuptial and Postnuptial Agreements Affect the Inheritance Rights of Spouses?
A prenuptial agreement (prenup) is signed by parties entering into a marriage, whereas a postnuptial agreement (postnup) is signed by parties who are married. Prenups and postnups expressly state each party’s property rights within marriage, so if the couple gets divorced or a spouse dies, there will be no confusion as to how the property should be divided.
As divorce rates rise, prenuptial and postnuptial agreements are becoming increasingly common, especially in community property states, where if a prenup or postnup was never executed, each spouse will automatically be entitled to one-half of the community property in the event of a divorce or death.
Prenups and postnups can be difficult to enforce in certain situations. However, a well-drafted prenup or postnup has the ability to override a state’s community property laws, as well as a decedent’s will or trust.
With that said, prenups and postnups are both subject to stringent rules. If you are a surviving spouse who previously had signed a prenup or a postnup, and the terms of the agreement seem unfair, there might be a possibility that the court will arrive at the same conclusion and void the agreement
Which Assets Automatically Transfer to the Surviving Spouse?
Certain assets automatically pass to the surviving spouse, even if the decedent’s will or trust states otherwise. In the following sections, we’ll discuss types of assets that may fall under this category.
Right of Survivorship Deeds
If the title to a certain piece of property designates the property as community property with a right of survivorship, the surviving spouse will inherit the property upon the death of their partner without the property having to pass through the probate process.
Transfer-on-Death and Payable-on-Death Designations
While some marital assets pass by default to the surviving spouse, some assets pass to the surviving spouse by way of beneficiary designations. There are two types of designations: payable-on-death (POD) designations and transfer-on-death (TOD) designations.
A POD designation allows the asset owner to have full control of the asset until they die. Once they die, the beneficiary whom the asset owner designated to be paid the asset can claim the asset without the asset having to pass through probate.
Common POD assets include:
- Bank accounts
- Life insurance policies
A TOD designation also allows the asset owner to maintain ownership of the asset until they die. Once they die, the beneficiary whom the asset owner designated to be transferred the asset can claim the asset without the asset having to pass through probate.
Common TOD assets include:
- Retirement accounts
- Real estate
- Vehicles
While beneficiary designations can be contested, doing so can be difficult since designated beneficiaries can claim an asset as soon as the asset owner dies. That said, you should not avoid contesting a beneficiary designation just because it’s difficult. Suppose someone other than the surviving spouse is designated as a beneficiary on an asset that was community property. This would be a compelling reason to challenge it.
What Are the Debt Obligations of the Surviving Spouse?
While most people intend to leave their surviving spouse and children a hefty inheritance, they may end up leaving them debt instead. In community property states, such as California, community debt is generally shared, just as property is shared.
The debt obligations of a surviving spouse depend on the type of debt and how it was incurred. If a debt was jointly incurred or incurred by their deceased spouse during marriage, the surviving spouse may be obligated to repay it.
On the other hand, the surviving spouse won’t usually be liable for debt the decedent incurred prior to marriage or that was solely in their name. These debts generally will be paid from the decedent’s estate during probate.
When a decedent’s estate does not have sufficient funds to cover the extent of their debts, creditors generally cannot usually pursue repayment from their surviving spouse unless the spouse had agreed to be liable for the debt (e.g., by cosigning).
Is the Surviving Spouse Entitled to Remain in the Family Home?
The surviving spouse is not automatically entitled to remain in the family home, but if they are at risk of losing it, they can seek the help of a probate attorney to invoke something known as a probate homestead. This allows a surviving spouse or registered domestic partner and their children to remain in the family home until the surviving spouse or partner dies, or the youngest child comes of legal age.
With a probate homestead, the family home will be protected from the reach of creditors, and from other beneficiaries or heirs claiming it. The only downside is that it could derail the wishes of the deceased spouse if they intended for the home to pass to someone other than their spouse or children.
Is the Surviving Spouse Entitled to a Family Allowance?
In California, financially dependent surviving spouses, minor children and adult children who are incapacitated can petition the court to be paid a family allowance from the decedent’s estate.
The decedent’s adult children who are not incapacitated and parents can also request a family allowance, but whether they receive one and in what amount will be determined by the court.
When a spouse dies, it can leave the surviving spouse and children without the financial means to get by, especially if the decedent had been the primary breadwinner of the family. A family allowance can enable them to make ends meet until they are provided with their inheritances.
Requests for a family allowance are filed during administration and can be in place until the personal representative or trustee begins the process of distributing the decedent’s estate or trust, respectively.
If administration is prolonged for any reason, a family allowance has the potential to significantly shrink the size of a decedent’s estate or trust, which could have a negative impact on the inheritances of the other beneficiaries. As a result, it is not uncommon for interested parties to contest family allowances.
Is the Surviving Spouse Entitled to Use a Spousal Property Petition to Transfer Assets?
Surviving spouses and registered domestic partners may be entitled to use a spousal property petition (Form DE-221) instead of a formal probate to transfer or confirm ownership of assets, regardless of the size or complexity of their deceased spouse’s/partner’s estate. However, they should remember that the petition will not completely relieve them from probate. Rather, it will shorten the length of the probate process, resulting in money and time savings.
With spousal property petitions, any questions surrounding the title or ownership of certain assets can be resolved in as little as one probate hearing.
Spousal property petitions can be filed by:
- The surviving spouse
- The surviving spouse’s personal representative (if the surviving spouse died after the decedent)
- The surviving spouse’s conservator of the estate
How Does Divorce Affect Spousal Rights After Death?
If a decedent is divorced or had a divorce pending when they died, disputes can arise in relation to whether or not their ex-spouse is entitled to inherit from their estate. For instance, if divorce papers had been filed but the divorce hadn’t been finalized, can the decedent’s soon-to-be ex-spouse claim an inheritance? What if the decedent did finalize the divorce but failed to amend their estate plan to exclude their ex-spouse?
In most states, there are safeguards built into the law to protect against the aforementioned scenarios. Unless the decedent expressly included their ex-spouse in their will or trust after the divorce was finalized, the ex-spouse will most likely not be entitled to an inheritance from the decedent’s estate.
The inheritance rights of ex-spouses largely depend on where the couple was in the divorce process when a spouse died. In this section, we cover the various scenarios that can arise in probate as a result of divorce.
What Are the Inheritance Rights of Spouses When a Divorce Is Pending?
When a spouse dies without having finalized their divorce or having updated their estate plan, the stage is set for inheritance disputes to arise. What entitlement, if any, does the surviving spouse have to the couple’s community property and the decedent’s separate property if their marriage is soon to be dissolved?
If a decedent was in the midst of getting a divorce when they died, but a decree of divorce had not yet been issued by the family court, the family court will typically dismiss the divorce proceeding and send the case to the probate court.
The surviving spouse may be entitled to gifts left to them in the decedent’s will or trust, but, ultimately, that will be decided by the probate court. In some instances, other beneficiaries of a decedent’s estate can bring a will contest to challenge the surviving spouse’s right to an inheritance.
What Are the Inheritance Rights of Spouses When a Divorce Is Finalized?
Once a final divorce decree has been entered, the surviving spouse will generally have no inheritance rights. What does this mean? We review some of the ways California Probate Code section 6122 affects the spousal rights of former spouses in the following sections.
Can an Ex-Spouse Act as a Fiduciary?
By definition, a fiduciary is someone who is supposed to act impartially and in the best interests of the person they represent.
Because ex-spouses cannot always be counted on to remain unbiased in matters relating to their ex-spouses, especially if their divorce from them was contentious, they will not have priority to be appointed as administrator if the decedent died without a will, or priority to serve as executor or trustee if the decedent died with a will and/or trust nominating them to the role.
Can an Ex-Spouse Inherit From the Decedent’s Estate?
Once a divorce is finalized and assets have been divided between the former spouses, the ex-spouse will generally have no right to an inheritance from their ex-spouse’s estate if their ex-spouse dies.
If a decedent had created a will or trust prior to divorcing their spouse, any gifts made to their ex-spouse will be revoked, unless, of course, the gift was intentional or reaffirmed after the divorce.
Similarly, if the decedent died without a will, intestate laws would not apply to the ex-spouse, since the ex-spouse would no longer be considered a legal heir of the decedent.
Can an Ex-Spouse to Inherit via Beneficiary Designations?
Probate Code section 5040 states that an ex-spouse’s beneficiary designation on most POD assets will be automatically revoked upon divorce. Therefore, even if a decedent neglected to remove their ex-spouse as a designated beneficiary on a POD asset, it’s unlikely the ex-spouse will be able to claim it. Life insurance beneficiary designations are an exception to this rule.
What Are the Inheritance Rights of Spouses When a Marriage Is Terminated But Division of Property Is Pending?
If a marriage has been terminated and one spouse dies while the division of property is pending, the family court will usually retain the jurisdiction to decide how to divide the couple’s assets. A fiduciary of the decedent (e.g., an administrator, executor or trustee) will assume the decedent’s role in the family court.
Most of the time, the court will apply the same rules to the surviving spouse of the terminated marriage that it applies to the surviving ex-spouse of a finalized divorce (i.e., the surviving spouse will not be permitted to inherit or act as a fiduciary).
Contact Us
Need help navigating your spousal rights after death? Call our compassionate legal team today.
If you are a surviving spouse, please accept our heartfelt condolences for your loss. Losing your partner is an unimaginable hardship, and while nothing can take away the pain, we’re here to help ease the legal burdens you may be facing in the aftermath.
Our dedicated team of probate attorneys has extensive experience in protecting and enforcing spousal rights after death. We are committed to guiding you through this process with care, compassion and professionalism, no matter where you are on the estate administration journey.
Having a trusted advocate by your side can help provide peace of mind during this challenging time. Call us today to request a consultation. We’re here to support you every step of the way.
