When a deceased person’s last will and testament conflicts with the legal rights guaranteed to a surviving spouse through marriage, the rights of the surviving spouse usually will prevail over the terms of the will. In short, a will generally does not override marriage. Rather, the rights guaranteed to spouses through marriage usually take precedence over a will’s terms.
Suppose a husband and wife purchase a home during marriage, making the home their community property. However, the wife convinces the husband to sign a deed placing the property in her name, which entitles her to leave 100% of the home to her children from a prior marriage. The husband doesn’t realize the implications of the deed until his wife’s death.
In this instance, the husband likely has recourse. Unless he signed a legally valid agreement waiving his community property rights, such as a transmutation agreement, he generally would be entitled to 50% of the home, even if his wife’s will states otherwise. In other words, his community property rights usually would override the will’s terms. To assert these rights, he may file an 850 petition to reclaim his 50% share of the home from his wife’s estate.
In conclusion, it’s much more plausible for marriage to “override” a will than it is for a will to “override” marriage. Still, there are limited circumstances in which a will could “override” a marriage.
When Does a Will Override Marriage in California?
Although community property laws are intended, in part, to protect surviving spouses who have been wrongfully excluded or inadequately provided for in their deceased spouse’s will, there are narrow circumstances in which a will may override these laws — and, by extension, the rights of the surviving spouse.
This does not mean your hands are tied if any of the scenarios discussed below apply to you. For instance, even if you signed a prenuptial agreement waiving your community property rights, the court may find the agreement to be unreasonable, allowing your spousal rights to supersede both the prenuptial agreement and the decedent’s will.
However, due to the complexities that may be involved in asserting your spousal rights, we strongly recommend involving an experienced probate attorney in your case from the outset.
The Property is “Separate”
Separate property refers to any property acquired prior to marriage, or by inheritance or gift during marriage. Because separate property isn’t part of the community, a surviving spouse generally isn’t entitled to any portion of it. That said, there are narrow exceptions to this rule.
Suppose a husband created his will before marrying his spouse and dies without updating it to include her. In this case, the spouse may qualify as an “omitted spouse” under California Probate Code section 21610.
In such an instance, California law would presume that, had the deceased updated their estate plan after marriage, they would have provided for their spouse. As a result, omitted spouses are entitled to the same share of the estate they would have received if their spouse died without a will.
When a person dies without a will, their estate is distributed according to intestate succession laws, which provide for the surviving spouse to inherit 100% of the community property and a percentage of the decedent’s separate property. The exact percentage of separate property depends on who the other surviving heirs are and their relationship to the deceased.
Suppose a wife opens a bank account prior to marriage, but even after marriage, continues to have her community property income direct-deposited into this account. In this case, because the wife effectively commingled community assets with her separate assets, her surviving spouse could argue the bank account is a community asset and should be distributed as such (i.e., he should receive 50% of it).
Adequate Assets were Left to the Surviving Spouse Outside the Will
Not all surviving spouses who are excluded from their deceased spouse’s will are considered “omitted” under California law.
According to Probate Code section 21611(b), a spouse will not receive a share of the estate under the omitted spouse doctrine if:
“The decedent provided for the spouse by transfer outside of the estate passing by the decedent’s testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence.”
In other words, the law states that if a decedent left assets to their spouse outside of their will, and evidence clearly indicates that these assets were intended to replace any inheritance from their will, the spouse would not be considered “omitted.” In short, the will may override the rights of the surviving spouse.
Suppose a husband left the entirety of his estate to his sibling in his will, but designated his spouse as his sole bank account beneficiary and executed a transfer-on-death deed granting her ownership of his separate real property upon his death. When combined, these assets are worth significantly more than the property remaining in his estate. Therefore, the court may determine that the spouse was adequately provided for outside the will, allowing the will to override her spousal rights.
The Surviving Spouse Signed a Legally Valid Waiver
If a surviving spouse previously signed a legally valid agreement — e.g., a transmutation, prenuptial or postnuptial agreement — partially or fully waiving their community property rights, the will may be able to override the rights of the spouse.
According to Probate Code section 21611(c), a spouse will not receive a share of the estate under the omitted spouse doctrine if:
“The spouse made a valid agreement waiving the right to share in the decedent’s estate.”
This is not to say a surviving spouse shouldn’t assert their community property rights if they signed a waiver. Although it may be more challenging for a spouse to assert their rights in such an instance, it’s certainly not impossible, especially if they involve a skilled probate attorney in the process.
When Does Marriage Override a Will in California?
A marriage does not “override” a will. However, spousal rights — not the marriage itself — may take precedence over a will’s terms.
Explore the scenarios in which the rights of a surviving spouse may supersede a will below.
The Will Violates Community Property Laws
As a refresher, community property refers to any property, with limited exceptions, acquired over the course of a marriage by either spouse. Community property laws guarantee each spouse to 50% of the community property (provided neither spouse waived their community property rights via a legally valid agreement).
If a deceased spouse’s will attempts to leave more than 50% of the community property to someone other than their spouse, the surviving spouse is entitled to file a petition to reclaim what’s rightfully theirs from their deceased spouse’s estate.
Suppose a husband had been gambling with money he’d withdrawn from the joint bank account he shared with his wife. Every time he would win, he would deposit his prize money into his separate bank account. If the husband were to try to leave his entire separate bank account to someone other than his wife, his wife could file a claim for at least 50% of the money he withdrew from their joint account, as well as 50% of his winnings, since the funds he used to gamble were community property. In this way, the rights of the spouse could override the terms of the will.
When assets are commingled, such as in the example above, it can be challenging to distinguish separate assets from community assets. Therefore, it may be necessary to hire a forensic accountant to track where money originated, and if that money could be considered community property.
The Surviving Spouse Qualifies as “Omitted”
As discussed previously, spouses who were unintentionally omitted from a will and/or other estate planning documents because the documents were created before marriage may qualify as an “omitted spouse.”
Probate Code section 21610 specifically states:
“Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate … ”
A surviving spouse is entitled to the same portion of her deceased spouse’s estate that she would be entitled to under intestate succession laws. This includes:
- All the community property
- All the quasi-community property (i.e., property acquired outside a community property state during marriage that would be considered community property had it been acquired in a community property state)
- A portion of the deceased spouse’s separate property equal in value to that which the spouse would have received if their spouse had died without a valid will or testamentary instrument (i.e., no more than 50% of the separate property)
The Surviving Spouse Successfully Contests the Will
While a surviving spouse generally is entitled to contest their deceased spouse’s will, it is not a right that is exclusive to them. Any interested party (i.e., anyone with a financial stake in the outcome of the matter) can typically contest a will. That said, surviving spouses usually can be characterized as an interested party since they would inherit by way of intestate succession if the will were to be invalidated.
A will may be invalid if it was created or amended by a spouse who lacked the necessary mental capacity (called testamentary capacity) to make a will, or if the will was created or amended as a result of misconduct, such as undue influence, fraud or another form of elder financial abuse. Other grounds for contesting a will, such as lack of due execution, could also apply.
Say a deceased spouse amended her will under duress by her children, which had the effect of disinheriting her husband. Because duress is considered a valid ground for contesting a will, the husband could contest his wife’s will after her death. If he’s successful, the will (or its problematic amendments) would be invalidated, and the wife’s estate would revert to being governed by her prior will (provided it’s valid) or by intestate succession laws (provided no valid will exists).
If a will strays significantly from the known final intentions of its creator (called the testator), it is cause for concern, since foul play or capacity issues could be to blame. If a surviving spouse’s inheritance could be impacted by how these issues are resolved, it means they have legal standing, which may entitle them to “override” the will by seeking to have it invalidated.
The Surviving Spouse Signed a Legally Invalid Waiver
Marital agreements, such as prenuptial and postnuptial agreements, can cause anxiety for surviving spouses, as they often impose significant limitations on their inheritance rights. However, the mere existence of a marital agreement does not guarantee its validity.
For example, certain conditions could result in a marital agreement being deemed invalid by the court, which may make it possible for the rights of a surviving spouse to override not only the agreement, but also the decedent’s will.
Some of the conditions that could make a marital agreement invalid include:
- The agreement was signed as a result of misconduct (e.g., undue influence, fraud).
- The agreement is unconscionable (e.g., extremely one-sided).
- The agreement fails to abide by established legal standards (e.g., the spouse wasn’t given sufficient time to review it).
- A spouse’s assets and liabilities weren’t fully disclosed.
There are countless factors to consider in determining the validity of a waiver. Therefore, it is advisable to seek the assistance of a probate attorney in reviewing any marital agreements that existed between you and your deceased spouse.
How Can a Spouse Override a Will?
If a will either conflicts with or violates your rights as a surviving spouse, it’s critical you seek the help of a skilled attorney to claim what’s rightfully yours from the decedent’s estate.
Remember that time is usually not on your side when it comes to enforcing your rights after the death of a spouse, so acting quickly is a must. For example, if you are seeking to contest a will, you typically only have 120 days from the date the executor is appointed to file your petition.
Legal Remedies to Consider
If a will’s terms clash with your rights as a surviving spouse, you may have several legal remedies available to you to help you to assert your spousal rights and claim what’s rightfully yours from the decedent’s estate. The appropriate remedy will depend on the nature of your claim and the specific circumstances of your case.
Will Contest
Although any interested party can generally contest a will, it is a right that is especially beneficial for surviving spouses.
Suppose a spouse altered their will to disinherit their spouse after losing mental capacity due to a stroke. In such a case, the surviving spouse may have grounds to contest the will, arguing that it was altered by their spouse, who lacked the mental capacity required to make such a change. If the surviving spouse’s contest is successful, the court may invalidate the alterations to the will (called codicils), either reinstating a prior version of the will that mentioned the spouse or causing the estate to be governed by intestate succession laws, which also would provide for the spouse.
Omitted Spouse Claim
As discussed previously, a spouse who qualifies as an “omitted spouse” under Probate Code section 21610 may have legal grounds for filing an omitted spouse claim to gain what’s rightfully theirs from their deceased spouse’s estate.
To qualify as an omitted spouse, the surviving spouse must be able to demonstrate the deceased spouse executed their will (or other estate planning documents) before they knew of the surviving spouse’s existence, and therefore, unintentionally “omitted” them.
Remember that a spouse who was intentionally excluded or expressly disinherited from their deceased spouse’s will does not qualify as omitted. However, if their exclusion or disinheritance was unfair and they were not provided for outside the will, they may still have options for enforcing their spousal rights, just not as an omitted spouse.
850 Petition
An 850 petition can be used by a surviving spouse to secure court orders transferring property out of their deceased spouse’s estate without a formal probate, provided they can prove the property at issue didn’t belong in the estate from the outset.
Say a husband and wife opened a business together during marriage. The husband, however, leaves the entirety of the business to his adult children from a previous marriage in his will. After the husband dies, the wife could file an 850 petition to remove her 50% interest in the business from the estate before it is distributed to the decedent’s children.
That said, there isn’t a guarantee a surviving spouse’s 850 petition will be granted. If it isn’t, the spouse could always assert their right to the asset during the probate process.
Family Allowance
In some instances, a surviving spouse may be entitled to seek a family allowance if they had been financially dependent on the decedent when they died. A family allowance can help make ends meet while probate is ongoing, since estate assets generally can’t be distributed until the completion of probate, which often takes a year or longer.
Although the right to seek a family allowance doesn’t “override” a will, per se, it could have the effect of changing the terms of a will if it’s granted. For example, a family allowance could significantly deplete the assets in an estate, causing beneficiaries’ inheritances to be reduced or eliminated.
FAQs: Wills, Trusts and Spousal Rights After Death
Do you still have questions about your spousal rights and how they may interact with your deceased spouse’s will or trust? If so, consider exploring the frequently asked questions below. If you require legal guidance tailored to your needs, don’t hesitate reaching out to our firm.
Does marriage override a trust?
A marriage does not technically “override” a trust, but spousal rights can take precedence over the terms of the trust if they conflict.
Does a will override a trust?
If property is made a part of a trust, then the terms of the trust will control the terms of a will.
For property to be considered trust property, it must be formally transferred to the trust or, at a minimum, the trust must express an intent for the property to be held as trust property (e.g., reference the asset as property of the trust within the trust or on an attached schedule to the trust).
A will, on the other hand, only governs property that is not held in a decedent’s trust. Because of that, the will usually has no authority over trust property.
Is a surviving spouse entitled to property held as joint tenants?
It depends. If the spouse is a joint tenant, then they (along with any other surviving joint tenants) would be able to assume full ownership of the property upon their spouse’s death.
If the spouse isn’t a joint tenant, then they still may have a right to the property if the property was considered community property. For example, say a husband uses community property funds to acquire real estate during marriage, but places title to the property in his and his brother’s names, as joint tenants. In this scenario, the wife could argue the property was community property when it was acquired; therefore, she owns a 50% interest in the property, regardless of the joint tenancy title.
Do you need a will if you are married?
Although no one is required to create a will, having a will can enable you to control how and to whom your assets are distributed after you die.
Many people falsely assume that if they get married, their spouse will automatically inherit everything after their death. If this is what they want, they may regard creating a will as pointless. However, this isn’t what happens after a spouse dies.
If you die without a will, it’s true your surviving spouse will be entitled to all the community property by way of intestate succession, but they will only be entitled to a portion of your separate property. Therefore, if you desire for your spouse to inherit all the community property and all your separate property, creating a will (or even a trust) is crucial.
Does a will override a common law marriage?
First, it’s important to remember that common law marriage isn’t recognized in every state. California, for example, doesn’t recognize common law marriage.
However, if your state does recognize common law marriage, your spousal rights may be able to override a will, regardless of whether the will disinherits you. For example, you could file a claim for what is known as an elective share to claim your rightful portion of an estate.
Does a will override a marriage contract?
It depends. If a marriage contract, such as a prenuptial, postnuptial, or transmutation agreement, is airtight and abides by established legal rules, then it may override a will. However, if the marriage contract is unconscionable, unenforceable, ambiguous, or otherwise invalid, there is a possibility a will could override it.
Still have questions about how spousal rights interact with wills?
Navigating spousal rights after the death of a spouse can be complicated. At Keystone, our skilled trust and will dispute attorneys specialize exclusively in probate litigation, giving them the experience needed to aggressively fight on your behalf to secure for you the inheritance you deserve from your spouse’s estate. Contact us today to take the first step toward reclaiming your rightful inheritance.
