If a surviving spouse or registered domestic partner can prove their deceased spouse’s trust has wrongfully deprived them of the inheritance to which they’re entitled or otherwise violated their spousal rights after death, they may have legal grounds to “override” the trust.
However, it’s important to point out that marriage doesn’t override a trust in and of itself. Rather, it’s the specific legal rights granted to a spouse through marriage that may take precedence over the provisions of a trust in certain situations.
Imagine a decedent created their trust long before marrying his spouse and died unexpectedly a few years after marriage without updating his trust or executing other estate planning documents to adequately provide for his spouse. Can a spouse override a trust in this scenario?
Because the surviving spouse in this example may be regarded as an omitted spouse, who has specific rights under California law, she may have legal grounds for “overriding” the trust, or, more accurately, filing a claim with the probate court for her rightful share of the trust based on her rights as an “omitted spouse.”
In sum, a surviving spouse can “override” a trust only if it infringes upon the specific legal rights granted to them through marriage or is otherwise invalid or improper.
When Does Marriage Override a Trust in California?
Only when a trust disregards the legal rights a spouse gains through marriage might a marriage “override” a trust in California.
That said, we want to reemphasize that marriage itself doesn’t override a trust. Rather, the rights of a spouse may prevail over the provisions of a trust if the latter violates the former or the two are in conflict.
In the following sections, we discuss scenarios in which the rights of surviving spouse may take precedence over a trust.
Joint Trust
A joint trust is a trust that holds assets for two individuals, usually a married couple. So long as both individuals are mentally competent, they typically appoint themselves to exercise equal control over the trust as its creators and co-trustees.
Joint trusts typically require a trust creator (called the settlor, grantor, or trustor) to obtain consent from the other trust creator before making any alterations to the trust. If a settlor alters a joint trust without the other settlor’s consent, the nonconsenting settlor may have legal grounds for “overriding” the alteration based on the joint nature of the trust and the implications that carries.
Community Property Rights
California is what is known as a community property state. In such states, any assets acquired by either spouse during a marriage or registered domestic partnership are (subject to limited exceptions) generally regarded as community property, or property that belongs equally to both spouses. Therefore, if trust provisions violate a surviving spouse’s community property rights, the spouse may be entitled to “override” them to claim what’s rightfully theirs.
Say a decedent creates a trust during marriage without informing his spouse. The trust provides for all the property to pass to his children from a prior relationship. Unbeknownst to his spouse, he also arranges for the substantial income he earns during marriage to be direct-deposited into an account in his trust. After his death, his children make a claim to the entirety of his trust, including the bank accounts holding all the income the decedent earned during the marriage.
In this example, the surviving spouse may have strong legal grounds for “overriding” the trust, since the trust violates her community property rights. As previously mentioned, each spouse in a marriage has a 50% interest in any property — including income — acquired during marriage (with some exceptions). Therefore, the decedent had no right to give away his wife’s interest by way of his trust.
There are numerous examples of scenarios where a married couple could acquire an interest in property during marriage. If a spouse’s estate plan doesn’t account for these shared rights, the surviving spouse may still be able to claim their fair share, even if it goes against the terms of the deceased spouse’s trust.
Omitted Spouse
In California, an “omitted spouse” is a surviving spouse who is not included in their spouse’s estate planning documents — typically because they married after their spouse had already created their estate planning documents.
Spouses who qualify as “omitted” may be afforded certain protections under California law. The probate code clearly lays out who qualifies as an “omitted spouse” and who doesn’t.
In regard to who qualifies as an omitted spouse, Probate Code section 21610 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 … ”
In regard to who doesn’t qualify as an omitted spouse, Section 21611 states:
“The spouse shall not receive a share of the estate under Section 21610 if any of the following is established:
(a) The decedent’s failure to provide for the spouse in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.
(b) 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.
(c) The spouse made a valid agreement waiving the right to share in the decedent’s estate.
(d) (1) If both of the following apply:
(A) The spouse was a care custodian, as that term is defined in Section 21362, of the decedent who was a dependent adult, as that term is defined in Section 21366, and the marriage commenced while the care custodian provided services to the decedent, or within 90 days after those services were last provided to the decedent.
(B) The decedent died less than six months after the marriage commenced.
(2) Notwithstanding paragraph (1), a spouse described by this subdivision shall be entitled to receive a share of the estate pursuant to Section 21610 if the spouse proves by clear and convincing evidence that the marriage between the spouse and the decedent was not the product of fraud or undue influence.”
Commingled Trust Assets
If a settlor funds their separate property trust with any community assets, even if temporarily, it may result in their separate assets becoming indecipherable from community assets, which may cause their separate assets to transmute by default to community property.
In this way, a surviving spouse’s community rights could “override” a decedent’s trust if its provisions call for more than 50% of an asset whose separate character cannot be verified to be distributed according to the provisions of the decedent’s trust.
Invalid Trust
While the right to contest a decedent’s invalid trust isn’t reserved for surviving spouses, it is a right surviving spouses generally are entitled to exercise. A trust may be invalid if it was created or changed by a decedent who lacked the mental capacity required to make such alterations, or the alterations made were the result of undue influence, fraud, or other misconduct.
Say a decedent had been manipulated by her children to amend her trust in their favor. Eventually caving to their pressure, she executed the amendments they requested, even though they eliminated the inheritance she’d always intended to leave her surviving spouse.
When a trust fails to reflect its settlor’s known final intentions, it is cause for alarm bells, as misconduct or capacity issues may be to blame. If a surviving spouse has a financial interest in how these issues are resolved (i.e., they have legal standing), they may be entitled to “override” the trust by contesting it. When a trust is successfully contested, either the entire trust, or its problematic provisions, will be invalidated.
When Does a Trust Override Community Property Laws in California?
Though community property laws generally safeguard a surviving spouse’s share of a trust, there are instances where a trust may override these safeguards. The type of trust you are dealing with, the characterization of the trust’s assets, and any legally binding agreements attached to the trust can all complicate a spouse’s ability to claim what they believe to be their rightful share of a trust.
This is not to say you are without legal recourse if you encounter any such challenges. If a trust is unlawfully preventing you from enforcing your community property rights, pursuing a claim is generally worthwhile. However, because of the challenges involved, seeking legal guidance from the outset is critical.
Separate Property Trust
If a trust exclusively holds a decedent’s separate property — and no community property was ever commingled with the separate property — it may “override” community property laws. This is because the trust’s assets were never part of the decedent’s marital estate, and, therefore, aren’t governed by community property laws.
That said, there are exceptions that could entitle a surviving spouse to a decedent’s separate property within a trust. For example, if the spouse qualifies as an “omitted spouse,” they may have a right to a portion of the decedent’s separate property.
Irrevocable Trust
More than other types of trusts, an irrevocable trust is designed to be legally binding and permanent, making it challenging for a surviving spouse, let alone anyone, to override.
Because any property transferred by spouses to an irrevocable trust is considered to be a gift, the spouses lose all control over the property once it’s in the trust. Therefore, an irrevocable trust generally cannot be modified or revoked without a court order or unanimous consent from the trust beneficiaries.
Valid Transmutation Agreement
If the surviving spouse had signed a legally valid transmutation agreement to change the character of a community asset to the decedent’s separate property, they essentially waived any right they may have had to the asset at issue. This could make it more challenging for the surviving spouse to claim a portion of that asset as their community property after their spouse’s death.
California Family Code section 852 (a) clarifies what makes a transmutation agreement between spouses valid:
“A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.”
While a legally valid transmutation agreement could help a trust “override” a spouse’s community property rights, it doesn’t mean a spouse has no legal recourse if they signed one. Say a surviving spouse had signed a transmutation agreement under duress. This may entitle the spouse to override a transmutation agreement that was otherwise valid.
Valid Prenup or Postnup
If the surviving spouse had previously signed a legally valid prenuptial or postnuptial agreement in which they partially or fully waived their community property rights, they are likely to face challenges if they pursue a community property claim for any assets that are protected under the agreement.
Family Code section 1615 (a) clarifies what makes a premarital agreement between spouses unenforceable:
“A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.”
Although an airtight prenuptial or postnuptial agreement could help a trust “override” a spouse’s community property rights, this is not always the case. If a spouse successfully argues the agreement at issue was unlawfully obtained or unreasonable to begin with, they may be able to “override” the agreement to claim their rightful share of a trust.
What to Do When a Trust Violates Spousal Rights
If a trust is in violation of your rights as a surviving spouse, it is crucial you take legal action to reclaim your rightful share of the trust. Because claims may be time-restricted, it is recommended you start the process of filing a claim as soon as you discover a trust may be infringing upon your spousal rights.
Enlisting the help of a skilled probate attorney is critical, as they can help you understand what your spousal rights are, as well as what legal actions you could take to successfully enforce them.
Legal Remedies to Consider
When a trust’s provisions are in conflict with your rights as a surviving spouse, you potentially can utilize one or more of the following legal remedies to enforce your rights and claim what’s rightfully yours from a decedent’s trust. The remedy you utilize will depend on the specifics of your claim.
850 Petition
An 850 petition may enable a surviving spouse to obtain court orders transferring property out of their deceased spouse’s trust without a formal probate if they can prove the property at issue didn’t belong in the trust to begin with.
Say a husband and wife purchased a home during marriage, but the husband took title to the property in his own name and later transferred the property into his own trust without his spouse’s consent. In this instance, the wife may be able to utilize an 850 petition to claim a 50% interest in the property from the trust.
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 their rightful share of a trust.
If you qualify as an omitted spouse, Section 21610 generally entitles you to:
The one-half of the community property that belongs to the decedent under Section 100.
The one-half of the quasi-community property that belongs to the decedent under Section 101.
A share of the separate property of the decedent is equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate.
Trust Contest
Although the right to contest a trust can hypothetically be exercised by any interested party, it is particularly useful for surviving spouses.
Say a decedent amended their trust to disinherit their spouse at the persistent urging of their children. In this instance, it may be possible for the surviving spouse to contest the instrument, since it was altered under suspicious circumstances and in a way that adversely impacted the spouse. If the spouse’s contest is successful, the trust may revert to its previous version, which did provide for them.
Family Allowance
If the surviving spouse had been financially dependent on the decedent when they died, they may have the right to seek a family allowance.
Constructive Trust
If a surviving spouse was deprived of their rightful share of a trust as a result of wrongdoing, they may be able to request that the court impose what is known as a constructive trust. When the court imposes a constructive trust, bad actors are ordered to transfer property they obtained unlawfully back to its rightful owner.
Say a decedent was intentionally misled into signing a deed transferring their most valuable trust property to their adult child. The decedent’s surviving spouse could seek a constructive trust to force the child to return the property to the trust as if they had just been holding the property temporarily.
Provided a misappropriated asset had previously been left to the surviving spouse in a trust or the asset had been community property, a constructive trust may restore the spouse’s right to the property.
FAQs: Trusts, Wills and Spousal Rights After Death
If you continue to have questions surrounding spousal rights after death, we encourage you to explore the frequently asked questions below. Remember, Keystone Law is always available to provide personalized legal guidance if you need it.
Can a spouse override a beneficiary?
A spouse cannot “override” a beneficiary, per se. However, spousal rights could trump beneficiary rights in certain situations.
Suppose a decedent started a business during marriage, making the business the couple’s community property. However, the decedent’s trust leaves the entirety of the business to the decedent’s child from a previous marriage. In this instance, the surviving spouse’s right to 50% of the business generally would prevail over the trust provisions granting the child 100% of the business.
Does a prenup override community property laws?
As previously discussed, a prenuptial agreement, provided it is legally valid and reasonable, may override community property laws.
However, this doesn’t mean a surviving spouse under a prenuptial agreement is without legal recourse. Skilled probate attorneys may be able to poke holes in a prenup, making it unenforceable.
Does marriage override a will?
No, marriage doesn’t in and of itself “override” a will. It can, however, protect a surviving spouse’s rightful share of the decedent’s estate.
To put it another way, if a decedent’s will aims to distribute more than the decedent’s 50% share of the community property, or property that never belonged to the decedent in the first place, a spouse may be entitled to “override” the terms of the will in reclaiming their rightful share of the decedent’s estate.
Does a will override a trust after death?
A properly funded trust generally prevails over a will after death. In other words, a will cannot govern the distribution of trust assets in most cases.
That said, a few exceptions do exist that may allow a will to “override” a trust. For example, if the will is considered a revocation or amendment to the trust, the terms of the will could “override” the trust.
Still have trust-related questions?
Navigating spousal rights after the death of a spouse can be challenging, especially when a trust is involved. At Keystone, our skilled trust and will dispute attorneys specialize exclusively in probate litigation, giving them the experience needed to vehemently fight on your behalf to secure for you the inheritance you deserve. Contact us today to take the first step toward reclaiming your rightful inheritance.
