Losing a spouse is hard enough; you shouldn’t also have to worry about navigating the complexities of spousal rights after death if you are the surviving spouse. The lawyers at Keystone Law Group have ample experience protecting and enforcing the inheritance rights of surviving spouses. They are well-equipped to handle any disputes over spousal rights that may arise following the death of a spouse. Call Keystone today to schedule a free consultation.
Keystone’s experienced lawyers can work with surviving spouses following the death of a decedent to ensure their spousal rights are upheld. Our attorneys can provide support through every step of the process, from interpreting the decedent’s will or trust to litigating on behalf of the surviving spouse if they need to bring or defend a claim. Call us to learn more about how we can help.
It is crucial for surviving spouses to firmly grasp the concepts of community property and separate property to ensure their spousal rights are not being violated by their deceased spouse’s will or trust. If it seems as though they are, they should consider seeking legal representation to protect their interest in the property.
Surviving spouses can’t afford not to be proactive when it comes to their spousal rights after death. The first step to being proactive is understanding the significance of community property and separate property, as well as the differences between them.
Keystone’s lawyers can help determine whether the decedent’s disposition of property through their will or trust violates the inheritance rights of spouses, and, if needed, litigate on their behalf to help them claim the inheritance to which they’re entitled.
Spouses generally own two types of property: 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 or both spouses.
There is also something known as quasi-community property; it 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 an equal 50% interest in all community property and quasi-community property acquired during the 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 collectively accumulated.
Separate property, in contrast, refers to any assets a spouse owned prior to marriage and certain property acquired during the marriage by gift or inheritance.
For the laws surrounding community property in California after death to apply, it is required for you to have been in either a marriage or registered domestic partnership with the decedent.
You might have a right to some of the decedent’s property even if you do not fall under one of the two aforementioned categories.
Let’s suppose a person believes they successfully divorced their previous spouse. They are not aware of the fact that their divorce was invalid, and, therefore, enter into another marriage with a new spouse. Because the divorce was never formalized, the person’s previous spouse is their legal spouse, whereas their new partner is their putative spouse.
A putative spouse believes their marriage to be valid and to have been 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.
The property acquired over the course of a putative marriage is considered quasi-marital property, and it is divided between the partners in the same manner community property would have been divided had the marriage been valid. The inheritance rights of putative spouses are largely identical to the inheritance rights of surviving spouses.
Read about the inheritance rights of putative spouses in instances where a decedent dies without a will.
In recent years, the inheritance laws in many states have been amended to address the needs of 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 some portion of their deceased partner’s assets, so long as their relationship with the deceased partner met certain conditions. Read on to learn about the protections built into the law for surviving unmarried cohabitating partners.
There are two types of protections 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; common law couples must meet certain conditions (e.g., the couple must reside together for a specified period of time, the couple must present themselves as married to family and friends), which vary by state, to 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 still file a Marvin Action to claim the inheritance to which they believe they are entitled. In order to successfully assert a Marvin claim, it must be proven that some sort of agreement – regardless of whether it was written, verbal or implied – about the passing on of property existed between the couple. Of course, legally valid written agreements have the best chance in court, but, with help from an experienced attorney, even verbal and implied agreements can be proven.
California law affords certain protections to surviving spouses, children and registered domestic partners who the decedent unintentionally omitted from their will or trust on account of their having created their will or trust before knowing about the existence of their spouse and/or children.
It can be disappointing for surviving spouses to learn of their omission from a decedent’s will or trust. They are likely wondering: Do omitted spouses have the same inheritance rights as surviving spouses who were included in the estate plan? How can omitted spouses assert their inheritance rights? Do omitted spouses have any entitlement to their deceased spouse’s separate property? We discuss the inheritance rights of unintentionally omitted spouses in more detail below.
It’s important to keep in mind that a spouse or child won’t be considered “omitted” in California under the following conditions:
If the surviving spouse waived their inheritance rights through a pre-nuptial agreement or post-nuptial agreement.
Our lawyers 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 aren’t being violated by the will or trust, by beneficiaries or other heirs, or by the executor or trustee during administration.
If a decedent had been in a marital relationship when they died, they are not permitted to dispose of more than one-half of the community property through their will or trust. If they do try to dispose of more than their half of the community property, they are, in effect, disposing of property belonging to their surviving spouse. To enforce their rights, the surviving spouse can enforce their ownership rights to the decedent’s property.
If you are a surviving spouse who believes your deceased spouse to be violating your spousal rights by improperly disposing of your half of the community property, it is important to get in touch with an experienced lawyer to learn your best route of action.
As a general rule, anyone with standing (i.e., financial stake in the outcome of a case) can bring a will or trust contest. Even though a surviving spouse may have been omitted from a will or trust, they are still a direct heir of the decedent, and therefore may have standing to challenge the decedent’s will or trust if they believe misconduct (e.g., undue influence, fraud, duress, coercion) could have played a role in the document’s creation or execution.
If you are a surviving spouse who wishes to bring a will or trust contest, a lawyer dealing in wills and trusts can help determine whether doing so would be in your best interest. If it is, they can file a claim on your behalf. They can also help surviving spouses who wish to defend a will or trust contest against other beneficiaries.
In a perfect world, people would update their will or trust, if they had previously executed one, upon entering into a marriage. However, it is common for people to forget this important task; perhaps they assume that the marriage would itself guarantee their spouse and future children an inheritance if they were to die.
This is true, but to an extent. While surviving spouses and sometimes surviving children are generally entitled to an inheritance, they may have to jump through a few hoops to get all the assets they believe they’re owed.
The court generally grants an omitted spouse (i.e., “pretermitted spouse”) the same community property rights the spouse would otherwise have been entitled to under the law; this means that the omitted spouse will be entitled to the decedent’s 50% interest in the community property and quasi-community property. But the decedent’s separate property, which is most likely what the decedent is disposing of through their will or trust, will generally pass to whomever is listed in the will or trust as the beneficiaries of those assets. Of course, omitted spouses have standing to contest the will or trust if they believe the distribution of assets is unfair or not in line with what their deceased spouse’s final wishes.
Let’s suppose that a spouse owned real estate before getting married. They did not transmute the real estate into community property, so it remained their separate property in marriage. When the real estate required improvements, however, the spouse utilized community funds to make them. Later, the spouse dies without having reimbursed the community funds. Is the surviving spouse entitled to a portion of the separate real estate?
The answer would be yes. 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 increased 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 occur 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 court has a formula for making this determination. Read more about the Pereira and Van Camp Formulas.
When community property contributions to separate property occur, it can be difficult for surviving spouses to know to what property they are entitled after their spouse dies. A lawyer dealing in will and trust disputes can help determine whether a decedent’s estate plan violates the community property rights or inheritance rights of spouses.
A prenuptial agreement (prenup) or postnuptial agreement (postnup) is signed by parties entering into a marriage and parties who are married, respectively. Prenups and postnups expressly state each party’s property rights within marriage, so if the couple gets divorced or if 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 the decedent’s will or trust.
A prenup or postnup must meet the following conditions in order for the court to consider it valid:
If you are a surviving spouse who had previously 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.
Regardless, your best bet is always to consult with a lawyer who can help enforce the inheritance rights of surviving spouses.
At times, certain assets automatically pass to the surviving spouse, even if the decedent’s will or trust states otherwise.
If the title of a certain piece of property has it designated as community property with 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.
Assets that are owned in what is called joint tenancy or joint tenancy with right of survivorship, such as real estate, bank accounts and vehicles, will also pass directly to the surviving spouse after one spouse dies.
While some marital assets pass by default to the surviving spouse, some assets the asset owner will have to designate to pass to the surviving spouse. There are two types of designations: payable-on-death (POD) designations and transfer-on-death (TOD) designations.
A POD allows the asset owner to have full control of the asset until they die, at which point, the designated beneficiary of that asset can claim the asset without it having to pass through probate.
Common PODs include:
A TOD also allows the asset owner to maintain ownership of the asset until they die, at which point the asset will transfer to the designated beneficiary without the need for probate proceedings.
Common TODs include:
The aforementioned beneficiary designations can be contested, if, for example, someone other than the surviving spouse is designated as a beneficiary on an asset that was community property. A lawyer can help you determine whether or not the beneficiary designation is valid, and, if needed, help you challenge it.
When offering retirement benefits to employees, employers will offer either an ERISA (Employee Retirement Income Security Act) or non-ERISA (nonqualified) plan.
The key difference between the two types of retirement plans is that ERISA plans abide by certain federal standards (e.g., employees must receive information about the plan’s features and funding, contributions must be tax-deductible), whereas non-ERISA plans are exempt from federal regulations.
Owners of ERISA accounts must designate their spouses as the beneficiary on these accounts, and if they wish to designate someone other than their spouse, the spouse will be required to waive their succession rights in writing.
When a decedent dies without a will (i.e., they die “intestate”), the court will use the state’s intestate succession statutes 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. Under certain circumstances, stepchildren may have priority to inherit over other heirs.
It is important to note that while wills and trusts can generally be contested by beneficiaries and heirs, intestate succession is difficult to contest. Unless it is proven that the surviving spouse is an unworthy heir (e.g., the spouse committed elder financial abuse toward the decedent), assets will be distributed by the administrator of the estate according to the state’s intestacy laws.
If a decedent dies without having executed a valid will, the court will appoint someone called an administrator to administer the decedent’s estate – a task that consists of everything from taking an inventory of the decedent’s assets, to paying creditors, to distributing the assets to heirs.
The court gives the decedent’s surviving spouse or domestic partner priority to act as administrator; if they don’t wish to take on the role, adult children of the decedent will be prioritized second, followed by their grandchildren, their parents and so on.
Administrators are permitted to be compensated for the time and energy they spend on estate administration, so if surviving spouses are up to the task, they can gain a source of income from it. Acting as administrator will also enable them to be on top of what is happening with the decedent’s estate.
If you are a surviving spouse who is looking to be appointed as the administrator of a deceased spouse’s estate, it is never a bad idea to hire an estate lawyer who can not only help to secure your appointment but also counsel you on your duties and help with completing them (e.g., preparing estate accountings). If any disputes arise over the course of administration, an estate lawyer can also litigate on your behalf.
Community property laws apply regardless of whether or not a spouse dies with a will and provide the surviving spouse with automatic entitlement to all of the couple’s community property; only a valid prenup or postnup agreement can supersede community property laws.
Intestate succession statutes become more complicated when dealing with the decedent’s separate property. The persons entitled to inherit the decedent’s separate property will differ case by case, as California’s intestate statutes divide separate property in accordance with whom the decedent has as legal heirs. For instance, if the decedent only has a surviving spouse as their heir, their separate property will pass entirely to the surviving spouse. If the decedent only has one child, their separate property will be divided equally between the spouse and the child. If the decedent has 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.
While most people hope to leave their surviving spouse and children a hefty inheritance when they die, what some actually end up leaving them is debt. In community property states, such as California, community debt is generally shared just as property is shared.
Typically, the decedent’s debts will be repaid by the executor or administrator of their estate during the administration stage using property of the decedent’s estate. What’s remaining of the decedent’s assets will be distributed among their beneficiaries and/or heirs. The primary residence in which the surviving spouse and decedent lived may be protected from creditors by something called a probate homestead, which is covered in the following section.
California Probate Code section 11420 outlines the order in which a decedent’s debts must be paid. The order goes as follows:
It is important to note that each class of debt must be paid in full to the creditor before the subsequent class can be paid.
When dealing with the loss of a spouse, the last thing you want is to worry about losing your home. Despite common belief, the home does not automatically transfer to the decedent’s family when they die. There are many ways in which a family could lose their home. Refer to the following list for examples:
If a surviving spouse or registered domestic partner is at risk of losing the family home, a beneficiary lawyer can help invoke something known as a probate homestead; it allows the surviving spouse and children to remain in the family home for a period of time, which can be up until the spouse dies or until the youngest child comes of legal age. With a probate homestead, the home will be protected against creditors, other beneficiaries and heirs claiming it.
It’s important to mention that while a probate homestead can be a lifesaver following the death of a decedent, it can also severely derail the decedent’s wishes (e.g., if the decedent wrote in their will that they wanted their home to go to their parent). A probate litigation lawyer can help determine whether a probate homestead is the best option, and, if needed, invoke one.
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 earner of the family. Luckily, in California, financially dependent surviving spouses, minor children or adult children who are incapacitated can petition the court to be paid a family allowance out of the decedent’s estate. The decedent’s adult children and parents can also request a family allowance, but whether they receive one and in what amount will be determined by the court.
Requests for a family allowance are filed during administration and can be in place until the court gives the go-ahead to the executor/administrator to start distributing the decedent’s estate or trust. If disputes arise during administration, or if administration is prolonged because a decedent has a large estate, family allowances can significantly shrink the size of the estate or trust, so it is not uncommon for an interested party to contest them.
The court can stop an allowance from going to a family member if, for example, that family member secured a source of income or is receiving financial support from someone else.
Regardless of whether you are a surviving spouse who needs help petitioning for a family allowance, or you are opposing another person’s petition for a family allowance, Keystone’s lawyers can help.
The probate process can be long and complicated, so if there is a way to shorten it or skip it all together, it’s definitely worth considering. Beneficiary designations bypass probate, allowing the beneficiary immediate access to the asset at hand. Spousal
Property Petitions, on the other hand, still involve probate but they shrink the length of the probate process.
Regardless of the size or complexity of a decedent’s estate, a Spousal Property Petition (Form DE-221) is one way of confirming or transferring property to a surviving spouse or registered domestic partner without a formal probate. A Spousal Property Petition is used to confirm title and ownership of certain property in a decedent’s estate to the decedent’s surviving spouse, whether or not the decedent had a will. With this kind of petition, any questions about the title or ownership of certain assets can sometimes be resolved in as little as one probate hearing.
Spousal Property Petitions can be filed by:
Spousal Property Petitions can save surviving spouses money and time since they generally don’t cost as much as traditional probate and can sometimes be resolved within a couple of months. Surviving spouses can solicit the help of a lawyer at our firm to file one.
When a decedent is divorced or had a divorce pending when they died, disputes can arise in relation to whether or not the ex-spouse is entitled to inherit. 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 their divorce but neglected 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 a divorce is 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 (e.g., divorce papers filed, divorce finalized) when the decedent died. In this section, we cover the various scenarios that can arise in probate as a result of divorce.
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 at all, does the surviving spouse have to community property and the decedent’s separate property if the 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 dismiss the divorce proceeding and send the case to the probate court. The surviving spouse will now be considered a widow and will have entitlement to their half of the community property so long as no prenup or postnup agreement was in place. It is likely the surviving spouse will also have entitlement to any 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.
If the decedent’s divorce had been finalized, the ex-spouse will generally not have entitlement to the decedent’s property, even if they appear in the decedent’s will or trust. Only if a decedent expressly states in a document signed after a divorce is finalized that they want certain property to pass to their ex-spouses will the ex-spouse be entitled to inherit.
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.
By definition, a fiduciary is someone who is impartial and whose job entails acting in the best interest of the person whom they represent. It is unlikely ex-spouses can be unbiased in matters relating to their previous spouses, especially if the divorce was contentious.
In the following list, we review some of the roles ex-spouses will not be able to fill in the event of their ex-spouse’s death.
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 the 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.
In California, even if a decedent neglected to remove their ex-spouse as the designated beneficiary of a particular asset, it is unlikely the ex-spouse will be able to claim it. Most assets with designated beneficiaries, such as bank accounts, life insurance policies and retirement accounts, automatically revoke the beneficiary if the asset owner gets a divorce.
Keystone’s lawyers can help current spouses contest beneficiary designations that name a former spouse. Our lawyers can also assist former spouses with asserting their right to an asset with a designated beneficiary if they believe they are entitled to it.
Parties to a divorce can ask the family court to terminate the couple’s marriage and determine how to divide property later.
If a decedent’s marriage had been terminated at the time of their death, the probate 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). Distribution of property might be more straightforward in a terminated marriage than in a marriage that had been intact when the decedent died.
If a marriage has been terminated and one spouse dies while the division of property is pending, the family court will retain the jurisdiction to decide how to divide the couple’s community property assets. A fiduciary of the decedent, e.g., an administrator, executor or trustee, will assume the decedent’s role in the family court.
Keystone’s lawyers can be a lifeline for surviving spouses of decedents in all matters probate. If you are a surviving spouse, instead of having to navigate the complexities of inheritance laws on your own at a time of grief, Keystone’s lawyers can do the heavy lifting to secure you the inheritance to which you’re entitled.
Our attorneys can help enforce your spousal rights at every stage of the administration process, from ensuring the will or trust was interpreted correctly to investigating whether the decedent’s will or trust violates community property rights. In this section, we cover some of the specific ways our attorneys can help surviving spouses following the death of their spouse.
The probate process can be complex, and it often gives rise to inheritance disputes, so it is never a bad idea for surviving spouses to have an experienced probate attorney in their corner. A probate attorney can provide guidance and support along the way, as well as handle any disputes that may arise. Some of the ways Keystone’s lawyers can counsel surviving spouses include:
If you are a surviving spouse who would like to learn more about your rights or about what is required of you as the executor, administrator or trustee of your deceased spouse’s estate, get in touch with one of our lawyers to be provided support and guidance through every step of the process.
California is a community property state, which means that following the death of a spouse, the surviving spouse will have entitlement to one-half of the community property (i.e., property that was acquired over the course of the marriage, regardless of which spouse acquired it). If the decedent died without a will, the spouse may be entitled to all of the decedent’s community property and some or all of the decedent’s separate property.
If, for any reason, surviving spouses feel their community property rights have been violated, it is crucial they get in touch with a probate lawyer as soon as possible to devise a legal strategy. Some of the specific ways in which Keystone’s lawyers can help enforce the community property rights of surviving spouses include:
In the absence of a prenup or postnup, surviving spouses are guaranteed one-half of the community property, regardless of what their deceased spouse’s will or trust says. Beneficiary designations are similar; in order for a decedent to leave a community property asset with a designated beneficiary to someone other than their spouse, their spouse would generally have to sign a waiver. Separate property, conversely, can be disposed of by the decedent in any way they please.
There are many scenarios that could arise during the probate process that could compromise the surviving spouse’s right to an inheritance. Here are some of the specific ways Keystone’s lawyers can help enforce the inheritance rights of surviving spouses:
If any of the aforementioned scenarios apply to you, it is important you reach out to a probate lawyer who can help enforce your rights and claim for you the inheritance to which you’re entitled.