Losing a spouse is one of life’s most profound losses, and it’s only natural to feel overwhelmed — especially when legal matters add to the weight of your grief. During this difficult time, you don’t have to face the complexities of spousal rights alone. Our compassionate and experienced probate attorneys are here to guide you and help carry that burden.
While managing your inheritance may not feel like a priority in the wake of such a devastating loss, delaying too long can create additional complications. Whether you need help enforcing your rights as a surviving spouse or resolving disputes related to your late spouse’s estate or trust, we’re here to help you reach the outcome you desire — so you can focus on healing.
If you’re a surviving spouse in need of legal support, allow Keystone Law Group to be your advocate.
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 or other relatives.
What Is a Qualifying Surviving Spouse?
A qualifying surviving spouse meets certain legal criteria — such as being in a valid marriage with the decedent at the time of their death — to inherit from or claim benefits through the decedent’s trust, estate or government programs.
What Are the Inheritance Rights of Spouses?
In general, the inheritance rights of surviving spouses only apply to spouses who were married or in a registered domestic partnership 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 these categories — you might. It’s just that your inheritance rights will be different from those 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 in their will or trust. How can you assert your right to half 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’re not entitled 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 longtime cohabitating partner. If you never married but had a verbal agreement to pass 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 you are dealing with similar predicaments, 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.
Does the Spouse Get Everything After Death?
The spouse doesn’t necessarily get everything after death. While there are scenarios in which this could happen, the amount a spouse inherits depends on many factors, including whether or not the decedent had a will or trust and the terms of those documents.
For example, a spouse could get everything if they’re named the sole beneficiary in the deceased spouse’s will or trust.
Likewise, a spouse could get everything by way of intestate succession if the decedent had no other direct heirs.
What happens to community property at the death of a spouse?
Unless the spouses had signed a valid prenuptial or postnuptial agreement, community property generally will be divided equally between the deceased spouse’s estate or trust and the surviving spouse after one spouse dies.
This is due to the fact that each spouse in a marriage owns 50% of the marital property regardless of which spouse acquired it. They can do with their respective shares what they please.
Community property refers to money or property acquired during a marriage or registered domestic partnership by either spouse (with limited exceptions). It belongs equally to both spouses.
What happens to separate property at the death of a spouse?
Spouses are generally entitled to leave 100% of their separate property to whomever they please in their will or trust.
Separate property belongs solely to one spouse. It typically consists of assets acquired prior to marriage or by way of gift or inheritance.
Does a Spouse Have a Right to an Inheritance?
Spouses do generally have a right to an inheritance if they are named in their deceased spouse’s will or trust, the decedent died intestate or they are considered an omitted spouse (i.e., a spouse who was inadvertently left out of their deceased spouse’s will) under the law.
While a spouse owns 50% of the community property, this is technically not an inheritance since the spouse already is its owner. A prenuptial or postnuptial agreement can affect a spouse’s community property rights, but it usually cannot eliminate them outright.
When a Husband Dies, What Is the Wife Entitled to?
What a husband is entitled to when his wife dies depends on the terms of her estate planning documents — or on intestate succession laws if she died without a will or trust. The wife, however, cannot leave more than 50% of the community property to anyone other than her husband.
If the wife died without a valid will or trust (i.e., she died intestate), the husband will be entitled to 100% of the community property and a portion of her separate property. The portion of the separate property the husband is entitled to depends on how many other direct heirs the wife has. For example, if she has a child or grandchild, 50% of the separate property will go to them and 50% will go to the husband.
When a Wife Dies, What Is the Husband Entitled to?
What a wife is entitled to when her husband dies is typically identical to what a husband is entitled to when his wife dies. In other words, she will be entitled to what he left her in his estate planning documents. If he died without a valid will or trust, she will be entitled to 100% of the community property and a portion of the husband’s separate property.
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.
Right of Survivorship Deeds
If title to 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 during their lifetime. Once they die, the beneficiary whom the asset owner designated to be paid the asset can claim the asset without it having to pass through probate.
Common POD assets include:
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
- Deeds
- Real estate
- Vehicles
Who Gets the House When a Spouse Dies?
Who gets the house when a spouse dies depends on how the property was owned. If the home was held in joint tenancy or as community property with a right of survivorship, it typically will transfer automatically to the surviving spouse.
If the home was the separate property of the deceased spouse, it’s not as clear who will get the home. The surviving spouse could inherit the home if their spouse left it to them in their will or trust. However, if the spouse died intestate, the surviving spouse would typically only be entitled to a portion of it.
That said, while a surviving spouse is not automatically entitled to remain in the family home, they can seek the help of a probate attorney to invoke something known as a probate homestead if they are at risk of losing it.
If granted, a probate homestead would allow the surviving spouse or registered domestic partner and their children to remain in the family home for a period of time — possibly 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 beneficiaries or heirs who may be entitled to 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.
When Is a 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. It may also be possible for the decedent’s parents and adult children who are not incapacitated to request a family allowance, but whether one is granted will be left up to the discretion of 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 inheritance.
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 — property that would’ve been marital property had the marriage been valid — it is divided between the partners in the same way community property is divided.
A putative spouse believes their marriage was carried out in good faith; however, in actuality, the marriage was 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 prior spouse would be regarded as the legal spouse, whereas their new partner would be regarded as the putative spouse.
What Are the Inheritance Rights of Spouses Omitted from a Will or Trust?
The court generally grants an omitted spouse (also called a “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 “omitted,” they would stand to inherit the same share of the decedent’s community property, quasi-community property and separate property that they would inherit if the decedent had died intestate.
To qualify as an omitted spouse, you must prove you were unintentionally excluded from a will or trust. In other words, if the decedent expressly disinherited you, chances are that you would not be considered an omitted spouse.
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 and gifts)
- If the surviving spouse waived their inheritance rights through a prenuptial agreement or postnuptial agreement
What Are the Inheritance Rights of Unmarried Cohabitating Partners?
While the unmarried cohabitating partner of a decedent will not have the same guaranteed entitlement to a decedent’s assets as a surviving spouse would, they may still have certain inheritance rights — provided their relationship with the decedent met certain conditions.
How Do Common Law Marriages and Marvin Actions Protect Unmarried Cohabitating Partners?
There are two types of protections within the law that may be available to unmarried cohabitating partners: common law marriage and the 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 don’t 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 marriages, but California is not one of them.
In California, surviving partners can potentially file a Marvin action to claim their rightful inheritance. In order for their claim to be successful, it must be proven that an agreement — whether written, verbal or implied — existed between the couple around the passing down of property after death.
It should go without saying that agreements made in writing, signed by both parties and notarized have the best chance of holding up in court. However, with help from a skilled probate attorney, even verbal and implied agreements can be enforced.
Does Divorce Impact Spousal Rights After Death?
If a decedent was divorced — or had a divorce pending when they died — disputes may arise surrounding whether or not their ex-spouse can 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 such scenarios. For example, in California, once a divorce judgment is issued terminating a couple’s marriage, most gifts in a decedent’s estate plan leaving property to the ex-spouse are automatically revoked.
All in all, the inheritance rights of ex-spouses largely depend on where the couple was in the divorce process when a spouse died.
Divorce is Pending
When a spouse dies without having finalized their divorce or 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.
Divorce Is Finalized
Once a final divorce decree has been entered, the surviving spouse will generally lose all their inheritance rights. We review some of the ways California Probate Code section 6122 affects the rights of ex-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, nor will they have priority to be appointed 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 usually won’t have a 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 automatically 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 one of the decedent’s legal heirs.
Can an Ex-Spouse Inherit via Beneficiary Designations?
Probate Code section 5040 states that an ex-spouse’s beneficiary designation on most payable-on-death (POD) assets will be automatically revoked upon divorce. Therefore, even if a decedent neglected to remove their ex-spouse as a designated beneficiary, it’s unlikely they will be able to claim the asset. Life insurance beneficiary designations are an exception to this rule.
Marriage Is Terminated But Division of Property Is Pending
If a marriage has been terminated, and a 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 role of the decedent in 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.
FAQs About Surviving Spouse Benefits and Rights
If you still have questions about the inheritance rights of surviving spouses – and their access to benefits — check out the frequently asked questions below. Remember, if you need personalized guidance, our firm is more than happy to assist.
What happens when a spouse dies without a will?
When a decedent dies 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, parents, 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 cannot. In most cases, the individual appointed as the administrator must distribute the decedent’s intestate estate to their closest surviving heirs in accordance with 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 of priority 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. If they decline their appointment, the court will allow the next person in line an opportunity to serve — provided they are qualified.
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 a probate attorney, who not only can help you secure your appointment but counsel you on your duties as well.
What is a spousal property petition and how can it help spouses?
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 and 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 do community contributions to separate assets work?
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 the efforts of the 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 can be used to make this determination.
How do prenups and postnups affect spousal rights after 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.
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 a 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, prenups and postnups 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.
With that said, prenups and postnups are subject to stringent rules. If you are a surviving spouse under a prenup or postnup, and the terms of the agreement seem unfair, the court may arrive at the same conclusion and void the agreement.
How long can a widow collect her husband’s Social Security?
Once a widow starts collecting her husband’s Social Security survivor benefits — which she can do as early as age 50 if she’s disabled or age 60 if she’s not — she can receive them for the rest of her life.
What are the debt obligations of the surviving spouse?
In community property states, such as California, debt is generally shared between spouses, 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 usually cannot pursue repayment from their surviving spouse unless the spouse had agreed to be liable for the debt (e.g., by cosigning).
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Still having a hard time navigating your spousal rights after death?
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 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.
