Disinheriting A Spouse In California

disinheriting a spouse in california

In family law, California is a “community property estate,” meaning nearly all assets acquired during a marriage are split equally between spouses in a divorce. The same is true in death; California estate law includes “forced share” or “equitable distribution” statutes that protect spouses and children in most situations. This makes disinheriting a spouse more difficult.

If you are interested in disinheriting a spouse, meeting with an estate lawyer as soon as possible is essential. We can help you establish what can and can’t be disinherited and draw up the necessary forms. In some cases, this might involve cooperation from your spouse.

Common reasons For disinheriting a spouse

Let’s look at different scenarios we see regularly when clients want to disinherit a spouse or keep a surviving spouse from inheriting certain assets.

You want to leave your portion of an estate to others

California’s community property state laws mean that half of all assets acquired during a marriage are yours. There are some exceptions, like those owned/acquired before the marriage, inherited by you, or gifted specifically to you during the marriage. Your estate attorney can help you determine which assets are yours and which are shared or belong to your spouse.

In most cases, when one spouse dies, the other spouse inherits all of the estates due to intestate succession laws. However, there may be some clarifying factors. For example, it’s not uncommon in blended families for some or all of the deceased’s spouse’s estate to be distributed to their biological/adopted children. 

In this case, the couple creates a will/trust together, these instructions (and reasoning) are clearly outlined, and the assets are distributed after their death and before the surviving spouse’s death. 

Your spouse has dementia or is incapacitated in some way

Another common example of why someone might want to disinherit a spouse has to do with their spouse’s state of mind. For example, couples, where one person has dementia, may modify the will so a designated POA has control of the funds after they die and can follow the care instructions for the surviving spouse.

It may also be that disinheriting your spouse is the best way to ensure they qualify for state or federal resources or care. In that way, disinheriting them is similar to creating an estate plan for a special needs child. Regardless of how well-meaning it is, your intentions are best protected by working with a qualified estate attorney who can create a trust that is virtually impossible to contest.

There are specific heirlooms or funds you inherited/were gifted

The state’s intestate succession laws clearly determine who inherits what after a person dies. However, wills and trusts often vary widely from that structure. If there are heirlooms, inherited assets, or gifted funds separate from community property, it’s a good idea to state that clearly in the will (and have your spouse sign off on it as well) so there is no confusion down the road. 

You never officially divorced but haven’t been together for years/decades

Unless something specific is written in the will, your spouse can contest anything in your will/trust through probate. In many cases, they will win because the law upholds the community property or “forced share” statutes regardless of what you may have written. 

In this case, your attorney will draft specific statements in your will about why you’re disinheriting your spouse, supplying any supporting documents/evidence in case it’s contested.

A large portion of your estate is from your solely-owned business

Sometimes clients want to leave a portion of their estate, but not all of it, to their spouse because the spouse did not earn it or because those assets need to remain within the company structure for the company to be solvent

Even so, the state considers all of that to be 50% of your spouse’s assets as well unless you’ve worked with a business lawyer or estate attorney to document otherwise. 

Steps to Disinheriting a Spouse

The reasons clients opt to disinherit a spouse are varied and complex. However, those are just a handful of the most common reasons. Regardless, disinheriting a spouse requires very specific steps and the assistance of a legal professional. This is definitely not a DIY-will situation.

In most cases, there are four steps to disinherit a spouse and minimize the risk of having the estate plan contested.

  1. Work with an estate planning attorney to avoid any unintentional mistakes.
  2. State the reasons for disinheriting clearly so there is no chance you accidentally left them out.
  3. Leave a portion of the estate to them beforehand and then state that clearly in the will, along with supporting documentation.
  4. In cases where the spouse is willing and cooperative with the plan/reasons, your estate attorney will draft documents that your spouse signs.

If you have children or step-children who may be angry or misunderstand the intentions, it might be a good idea to share the disinheritance with them beforehand so they know what to expect.

Tseng Law Firm Can Help You Disinherit a Spouse

Are you planning to disinherit your spouse, or create a post-death allocation of assets that is different from the typical 50-50 split? Contact Tseng Law Firm to schedule an appointment. We’ll determine the best path forward for distributing your estate according to your wishes.